Embryo research, cloning, assisted conception, neonatal care, saviour siblings, organ transplants, drug trials – modern developments have transformed the field of medicine almost beyond recognition in recent decades and the law struggles to keep up. In this highly acclaimed and very accessible book Margaret Brazier and Emma Cave provide an incisive survey of the legal situation in areas as diverse as fertility treatment, patient consent, assisted dying, malpractice and medical privacy. The sixth edition of this book has been fully revised and updated to cover the latest cases, from assisted dying to informed consent; legislative reform of the NHS, professional regulation and redress; European regulations on data protection and clinical trials; and legislation and policy reforms on organ donation, assisted conception and mental capacity. Essential reading for healthcare professionals, lecturers, medical and law students, this book is of relevance to all whose perusal of the daily news causes wonder, hope and consternation at the advances and limitations of medicine, patients and the law.
The Human Fertilisation and Embryology Act 1990 (as amended) and the Human Fertilisation and Embryology Authority regulate reproductive technologies. Neither has escaped criticism. Tough questions surround issues of access to treatment. The law has struggled with the meaning of ‘father’ and ‘mother’. The first ‘test tube’ IVF baby was born in 1978. Since then, reproductive technologies have advanced considerably. Many generate moral controversy. Pre-implantation genetic diagnosis (PGD) involves screening embryos to avoid implanting embryos with a defective gene. The technology has led to the creation of ‘saviour siblings’ where parents whose child is afflicted by a potentially fatal genetic disorder can seek to have another baby whose stem cells, taken from her umbilical cord, could ‘cure’ her brother or sister. Surrogacy remains a difficult issue, particularly around the question of payment.
All health professionals confront ethical dilemmas. Chapter 3 asks how society understands and implements concepts of the sanctity of human life. Beauchamp and Childress’s ‘Four Principles’: autonomy, beneficence, non-maleficence and justice provide a framework for ethical conduct. Each is examined before we consider the role of religion and secularisation and difficult questions about respect for human life at the beginning and end of life.
The Practice of Medicine Today examines the tiers of medical regulation. The first half of the chapter focuses on professional regulation undertaken by statutory regulators such as the General Medical Council (GMC), which sets standards for students and doctors, sets out guidance on how to meet them, operates a system of revalidation by which all licensed doctors must regularly demonstrate that they are fit to practise and disciplines doctors who fail to meet those standards. The second part examines the NHS and considers the role of a range of governance bodies from Monitor to the Care Quality Commission.
Doctors’ Responsibilities: Patients’ Rights looks at patients’ rights in the context of decision-making. We consider the impact of the European Convention on Human Rights; the Human Rights Act 1998 and their expression in the NHS Constitution. We consider the difficult matter of resource allocation, the role of the National Institute for Health and Care Excellence (NICE) and reliance on the ‘Quality Adjusted Life Year’ (QALY) – a resource allocation tool that measures the quality of the patient’s remaining life-years.
This chapter considers the legal and moral status of the human embryo and foetus. It is an area that continues to attract controversy. Consensus is impossible to attain. We consider the terms of the Abortion Act 1967 and proposals for reform and examine the status of the embryo in embryo research. We also analyse the response of the European Court of Human Rights in Vo v France and A, B and C v Ireland and its impact on domestic law.
In this chapter, we examine the law governing doctors’ relationships with child patients. The courts are often asked to determine the fate of ill children when doctors and parents disagree about how best to care for the child. One recent example involved parents removing their five year old from hospital to seek treatment abroad. In another recent case a mother disappeared for days when the court ruled her son should receive aggressive treatment for his cancer. Very poorly babies born at the threshold of viability sometimes raise questions about the withholding or withdrawing of treatment. Older children can give consent if they are judged to have sufficient understanding to be considered ‘Gillick competent’, but they cannot necessarily refuse treatment that others consider to be in their best interests.
This chapter focuses on the regulation of Healthcare Research. If medicine is to progress to combat cancer and continue the battle against diseases such as diabetes and multiple sclerosis, new drugs and procedures must be subject to trials. But patients must not be used as a means to an end. We consider the role of Research Ethics Committees in balancing the risks and burdens of research and set out the law relating to consent, children, those lacking capacity and emergency research. Compensation is considered and we consider the legal response to research misconduct.
Whilst death cannot be evaded, the precise moment of its onset is subject to debate. Biologically, death is a process and not an event. Historically, the key factors in the process used to determine whether death had occurred were the cessation of breathing and the cessation of heartbeat. Medical advances show this to be problematic. Consider elective cardiac arrest during open-heart surgery, for example, or cases of spontaneous cardiac arrest followed by successful resuscitation. The heart stops but the patient is not dead. Official endorsement of ‘brain stem death’ in the UK is now to be found in a comprehensive Code of Practice issued by the Academy of Medical Royal Colleges. The legal implications are examined in full.
This chapter explores legal questions surrounding organ and tissue transplantation. We consider the Human Tissue Act 2004 which regulates transplantation in England and Northern Ireland, setting out and analysing the law in relation to both live donation and cadaver transplantation. We examine responses to the shortage of donated organs and consider the significant change to the law in Wales relating to cadaver transplantation in the Human Transplantation (Wales) Act 2013.