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 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.
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.
A Relationship of Trust and Confidence: Doctors must be able to keep secrets but the obligation is not absolute. This chapter examines the nature of the duty of confidentiality and explores the circumstances in which disclosure to others is justified or required. Considering landmark cases such as W v Egdell and Campbell v MGN and guidance from the General Medical Council, we chart the development of the legal claims for breach of confidence and the implications of a developing right to privacy, ‘misuse of private information’. In the latter part of the chapter, we consider the difficult issue of genetic privacy and the complex provisions of the Data Protection Act.
In the landmark 2015 Supreme Court decision of Montgomery v Lanarkshire Health Board, the much criticised decision of the House of Lords in Sidaway v Royal Bethlem Hospital was consigned to history. No longer are adults with mental capacity only entitled to be told what doctors think it is appropriate to tell them. This chapter considers the torts of battery and negligence, exploring the right to consent and the right to say ‘no’ to treatment. What is meant by consent? How much must a doctor tell a patient? Can a doctor withhold information from a patient in her best interests (the so-called ‘therapeutic privilege’)?
Capacity, Consent and Compulsion examines the Mental Capacity Act 2005 ten years on. This visionary piece of legislation has led to a substantial body of case law. Its rejection of a pure substituted judgement test in favour of a modified best interests test and its adoption of a two part test for (in)capacity have excited much academic debate. In 2007 the Act was amended to introduce new Deprivation of Liberty Safeguards (DoLS). The DoLS have been widely criticised. We consider measures to support those lacking capacity such as advance directives, lasting powers of attorney and court-appointed deputies. Central to the Act is the Court of Protection which adjudicates on disputes in both health care and welfare matters.
The law of negligence provides compensation to individuals injured as a result of another person’s negligence. Gross negligence resulting in death may be punished by the criminal courts. Both issues are covered in detail in this chapter. We consider the three factors that must be demonstrated for a patient to establish negligence: duty, breach and causation. We chart relevant case law including the famous decisions of Bolam and Bolitho. Wilful neglect of a mentally ill or mentally incapacitated patient has long been a crime. Sections 20-25 of the Criminal Justice and Courts Act 2015 extends the offence of ill treatment or wilful neglect to cover such conduct by all paid care workers, which includes doctors and nurses. We discuss a number of pending prosecutions under the Corporate Manslaughter and Homicide Act 2007.
The patient wishing to claim clinical negligence faces a number of problems. How can a lawsuit be funded? Which health professional caused the injury? As a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), legal aid has been withdrawn for most clinical negligence claims. A radically reformed system for conditional fee agreements (CFAs) became the primary source of funding for clinical negligence claims. But the NHS Litigation Authority (NHSLA) reports high levels of claims that the NHS struggles to bear. Resources are limited and money spent defending claims is money that cannot be spent on healthcare. Are we in the midst of a compensation culture? Are doctors becoming increasingly defensive? The civil litigation system struggles to balance justice to patients and affordability to the NHS.
Robert Francis QC’s Report of the Mid Staffordshire NHS Trust Public Inquiry 2013 (the Francis Report) criticised the Trust’s poor reaction to persistently appalling standards of care. Despite numerous reforms, the NHS complaints procedure has come under fire for many years. This chapter examines the history, reforms and future of the NHS complaints process within a wider system of patient redress. It analyses the two stage complaints process- local resolution and appeal to the Health Service Commissioner, better known as the NHS Ombudsman; examines the role of apologies; and considers the viability of an alternative to tort: no-fault compensation.