Medical Law and Ethics

Medical Law and Ethics covers not only the core legal principles, key cases, and statutes that govern medical law, but also explores the key ethical debates and dilemmas that exist in the field to ensure that the law is firmly embedded within its context. The title highlights these debates, drawing out the European angles, religious beliefs, and feminist perspectives which influence legal regulations. Other features such as ‘a shock to the system’, ‘public opinion’, and ‘reality check’ introduce further sociological aspects, contributing to the way in which the subject is approached. This new edition also includes coverage of new Guidance issued by the GMC and the new Protection of Liberty Safeguards. It also outlines important case law developments on the law on mental capacity and euthanasia, including the Alfie Evans and Tafida Raqeeb litigation, case law interpreting the Mental Capacity Act, and the Court of Appeal in Conway.

Medical Law and Ethics

10.1093/he/9780198810605.001.0001 ◽

2018 ◽

Cited By ~ 10

Author(s):

Jonathan Herring

Keyword(s):

Case Law ◽

Medical Law ◽

Legal Principles ◽

Codes Of Practice ◽

Reality Check ◽

Law And Ethics ◽

The Supreme Court ◽

Feminist Perspectives ◽

The Law ◽

Medical Law and Ethics covers not only the core legal principles, key cases, and statutes that govern medical law, but also explores the key ethical debates and dilemmas that exist in the field to ensure that the law is firmly embedded within its context. The title highlights these debates, drawing out the European angles, religious beliefs, and feminist perspectives which influence legal regulations. Other features such as ‘a shock to the system’, ‘public opinion’, and ‘reality check’ introduce further sociological aspects, contributing to the way in which the subject is approached. This new edition also includes coverage of new Codes of Practice issued by the Human Tissue Authority and the changes in the structure of the NHS. It also outlines important case law developments on the law on mental capacity and euthanasia, including the Charlie Gard litigation, the decision of the Supreme Court in Montgomery, and the Court of Appeal in Conway.

‘Not My Employee, Not My Liability’

The Denning Law Journal ◽

10.5750/dlj.v32i1.1917 ◽

2021 ◽

Vol 32 (1) ◽

pp. 25-49

Author(s):

Carrie De Silva

Keyword(s):

Supreme Court ◽

Practical Interest ◽

Case Law ◽

The Body ◽

Legal Principles ◽

Vicarious Liability ◽

The Supreme Court ◽

Potential Impact ◽

The Law ◽

In April 2020, the Supreme Court in WM Morrison Supermarkets plc v Various Claimants [2020] and Barclays Bank plc v Various Claimants [2020] overturned the decisions of the Court of Appeal in applying the law regarding vicarious liability of employees and others (and deciding in both cases that the defendant companies were not liable for the acts in question). The scope of responsibilities which the employment relationship brings, together with an awareness among many businesses of the classification worker, along with the more familiar employed/self-employed status, makes an examination of the outcomes and potential impact of these cases of wide, practical interest for those running businesses, large or small. The review concluded that there had been no dramatic change in the law but that the cases provide a measure of comfort to employers in something of a common-sense view being taken as to the scope of vicarious liability. They also add to the body of case law, helping to ensure that future issues can more clearly be reasoned out of court, with the detailed steer on the application of legal principles which a Supreme Court judgment provides.

Lasting powers of attorney: implications for clinicians

Advances in Psychiatric Treatment ◽

10.1192/apt.bp.111.009019 ◽

2012 ◽

Vol 18 (3) ◽

pp. 205-212 ◽

Cited By ~ 3

Author(s):

Martin Curtice ◽

Isurima Katuwawela ◽

Richard McCollum

Keyword(s):

Case Law ◽

Mental Capacity ◽

Personal Health ◽

England And Wales ◽

The Law ◽

Mental Capacity Act ◽

First Time

SummaryIssues relating to capacity are increasingly topical and relevant, particularly following the implementation of the Mental Capacity Act 2005. Powers of attorney are one such issue that requires the assessment of capacity for their execution. This article focuses on lasting powers of attorney (LPAs), which were introduced under the Mental Capacity Act in 2007. We describe how LPAs evolved and how they have been used since the inception of the Act. We review salient case law. In doing so, we elucidate pertinent issues for clinicians, particularly in the case of health and welfare LPAs: for the first time in England and Wales, the law allows donors to nominate an attorney to make decisions about their personal health and welfare once they become incapacitated.

The rebirth of medical paternalism: An NHS Trust v Y

Journal of Medical Ethics ◽

10.1136/medethics-2018-105098 ◽

2018 ◽

Vol 45 (1) ◽

pp. 3-7 ◽

Cited By ~ 6

Author(s):

Charles Foster

Keyword(s):

Patient Autonomy ◽

Public Funding ◽

Mental Capacity ◽

Best Interests ◽

Health Board ◽

Medical Law ◽

The Supreme Court ◽

Medical Paternalism ◽

Mental Capacity Act

Over the last quarter of a century, English medical law has taken an increasingly firm stand against medical paternalism. This is exemplified by cases such as Bolitho v City and Hackney Health Authority, Chester v Afshar, and Montgomery v Lanarkshire Health Board. In relation to decision-making on behalf of incapacitous adults, the actuating principle of the Mental Capacity Act 2005 is respect for patient autonomy. The only lawful acts in relation to an incapacitous person are acts which are in the best interests of that person. The 2005 Act requires a holistic assessment of best interests. Best interests are wider than ‘medical best interests’. The 2018 judgment of the Supreme Court in An NHS Trust v Y (which concerned the question of whether a court needed to authorise the withdrawal of life-sustaining clinically administered nutrition/hydration (CANH) from patients in prolonged disorders of consciousness (PDOC)) risks reviving medical paternalism. The judgment, in its uncritical endorsement of guidelines from various medical organisations, may lend inappropriate authority to medical judgments of best interests and silence or render impotent non-medical contributions to the debate about best interests—so frustrating the 2005 Act. To minimise these dangers, a system of meditation should be instituted whenever it is proposed to withdraw (at least) life-sustaining CANH from (at least) patients with PDOC, and there needs to be a guarantee of access to the courts for families, carers and others who wish to challenge medical conclusions about withdrawal. This would entail proper public funding for such challenges.

The Use of Neuroscience and Psychological Measurement in England's Court of Protection

Frontiers in Psychiatry ◽

10.3389/fpsyt.2020.570709 ◽

2020 ◽

Vol 11 ◽

Author(s):

Andrew McWilliams ◽

Stephen M. Fleming ◽

Anthony S. David ◽

Gareth Owen

Keyword(s):

Brain Function ◽

Mini Mental State Examination ◽

Case Law ◽

Mental Capacity ◽

Best Interests ◽

Quantitative Review ◽

Mental Capacity Act ◽

State Examination ◽

Neuroscience Community

The 2005 Mental Capacity Act of England and Wales provides a description in statute law of a test determining if a person lacks “mental capacity” to take a particular decision and describes how the “best interests” of such a person should be determined. The Act established a new Court of Protection (CoP) to hear cases related to the Act and to rule on disputes over mental capacity. The court gathers a range of evidence, including reports from clinicians and experts. Human rights organisations and others have raised concerns about the nature of assessments for incapacity, including the role of brain investigations and psychometric tests.Aim: Describe use and interpretation of structured measures of psychological and brain function in CoP cases, to facilitate standardisation and improvement of practices, both in the courtroom and in non-legal settings.Method: Quantitative review of case law using all CoP judgments published until 2019. The judgments (n = 408) were read to generate a subset referring to structured testing (n = 50). These were then examined in detail to extract the nature of the measurements, circumstances of their use and features of interpretation by the court.Results: The 408 judgments contained 146 references to structured measurement of psychological or brain function, spread over 50 cases. 120/146 (82.2%) referred to “impairment of mind or brain,” with this being part of assessment for incapacity in 58/146 (39.7%). Measurement referred on 25/146 (17.1%) occasions to “functional decision-making abilities.” Structured measures were used most commonly by psychiatrists and psychologists. Psychological measurements comprised 66.4% of measures. Neuroimaging and electrophysiology were presented for diagnostic purposes only. A small number of behavioural measures were used for people with disorders of consciousness. When assessing incapacity, IQ and the Mini-Mental-State Examination were the commonest measures. A standardised measure of mental capacity itself was employed just once. Judges rarely integrated measurements in their capacity determinations.Conclusion: Structured testing of brain and psychological function is used in limited ways in the Court of Protection. Whilst there are challenges in creating measures of capacity, we highlight an opportunity for the neuroscience community to improve objectivity in assessment, inside and outside the courtroom.

Company Directors: Duties, Liabilities, and Remedies

10.1093/oso/9780198754398.001.0001 ◽

2017 ◽

Keyword(s):

Case Law ◽

Third Party ◽

Court Decisions ◽

Cayman Islands ◽

Market Abuse ◽

Company Directors ◽

The Law ◽

The Uk ◽

Law And Legislation ◽

This is a new edition of the established authority on the law relating to directors of companies incorporated under the UK Companies Acts. The new edition features all important developments in the law including the Small Business, Enterprise and Employment Act 2015 which improves transparency (including requiring directors to be natural persons unless exceptions apply), simplifies company filing requirements, clarifies the application of general duties to shadow directors, modernises directors’ disqualification and reforms insolvency law to facilitate proceedings where there has been wrongdoing. There has been a wealth of new case law relevant to directors’ duties before the English courts, all of which are analysed and explained, including the Supreme Court decisions in Prest v Petrodel Resources, Jetivia v Bilta (UK), FHR European Ventures v Cedar Capital Partners and Eclairs Group v JKX Oil & Gas, the Court of Appeal decisions in Smithton Ltd v Naggar and Newcastle International Airport v Eversheds as well as the important High Court decisions in Universal Project Management Services v Fort Gilkicker, Madoff Securities International v Raven and the wrongful trading case, Re Ralls Builders. Non-UK cases are also analysed including Weavering Macro Fixed Income Fund Ltd v Peterson in the Cayman Islands’ Court of Appeal and the 2016 decision of the Hong Kong Court of Final Appeal Chen v Jason. In keeping with developments in case law and legislation the book now includes expanded coverage of multiple derivatives claims, directors’ exposure to third party claims and a new chapter on civil remedies for market abuse. The third edition is a complete reference work on the law relating to company directors and is the first port of call for all serious corporate lawyers and scholars on this subject.

3. Consent

10.1093/he/9780198871354.003.0003 ◽

2021 ◽

pp. 37-58

Author(s):

Jo Samanta ◽

Ash Samanta

Keyword(s):

Public Policy ◽

Information Disclosure ◽

Common Law ◽

Case Law ◽

Mental Capacity ◽

Best Interests ◽

Relevant Case ◽

The Common ◽

Mental Capacity Act

This chapter deals with consent as a necessary precondition for medical treatment of competent adults. It provides an overview of the common law basis of the Mental Capacity Act 2005, followed by discussion of issues relating to information disclosure, public policy, and the key case of Montgomery and how this applies to more recent cases. It considers the statutory provisions for adults who lack capacity, exceptions to the requirement to treat patients who lack capacity in their best interests, and consent involving children under the Children Act 1989. Gillick competence, a concept applied to determine whether a child may give consent, is also explained. Relevant case law, including Gillick, which gave rise to the concept, are cited where appropriate.

6. The Doctrine of Judicial Precedent

Learning Legal Rules ◽

10.1093/he/9780198799900.003.0006 ◽

2019 ◽

pp. 160-195

Author(s):

James Holland ◽

Julian Webb

Keyword(s):

Human Rights ◽

Supreme Court ◽

Case Law ◽

Stare Decisis ◽

Legal Principles ◽

Legal Problems ◽

The Supreme Court ◽

Pure Case ◽

The Impact ◽

This chapter examines the use of case law to solve legal problems. In the study and practice of law we seek to analyse legal principles; and the ‘principles’ in English law are derived from pure case law or from case law dealing with statutes. The discussions cover the idea of binding precedent (stare decisis); establishing the principle in a case; the mechanics of stare decisis; whether there are any other exceptions to the application of stare decisis to the Court of Appeal that have emerged since 1944; whether every case has to be heard by the Court of Appeal before it can proceed to the Supreme Court; precedent in the higher courts; other courts; and the impact of human rights legislation.

Mental Health Law

A Medic's Guide to Essential Legal Matters ◽

10.1093/med/9780198749851.003.0010 ◽

2018 ◽

pp. 127-140

Author(s):

Anthony Holland ◽

Elizabeth Fistein ◽

Cathy Walsh

Keyword(s):

Mental Health ◽

Mental Capacity ◽

Health Interventions ◽

Family Context ◽

Clinical Settings ◽

Health Law ◽

Legal Basis ◽

Legal Principles ◽

Mental Capacity Act

Mental health is everyone’s concern, an idea epitomized by the campaign tag line of the Royal College of Psychiatrists, ‘No Health Without Mental Health’. This chapter will demonstrate how an understanding of a patient’s mental health within his/her social and family context is central to clinical practice. We will consider the legal basis for the treatment of mental ill-health and how it can complicate the treatment of physical illness and lead to ethical and legal concerns. The general legal principles that govern health interventions are explored, and two specific statutes for England and Wales—the Mental Capacity Act 2005 and the Mental Health Act 1983 (as amended 2007)—are both considered in some detail. It will be shown how a sound appreciation of the clinical issues, an understanding of the law, and an ability to apply that law in clinical settings are essential when faced with situations involving mental ill-health.

Consent conundrums: patient consent in neuroscience nursing

British Journal of Neuroscience Nursing ◽

10.12968/bjnn.2020.16.1.48 ◽

2020 ◽

Vol 16 (1) ◽

pp. 48-52

Author(s):

John Finch

Keyword(s):

Mental Capacity ◽

Court Decisions ◽

Legal Problem ◽

Neuroscience Nursing ◽

Patient Consent ◽

The Law ◽

Mental Capacity Act ◽

Pain Distress

In BJNN 15(4) and BJNN 15(5), John Finch looked in detail at the role of the Mental Capacity Act 2005 and its accompanying Code in the practice of neuroscience nurses. He concluded, as have others, that the guidance offered by the Act and the Code falls short of what neuroscience nurses need in their practice. In this article, he turns his attention to the treatment of patients who can and do consent to proposed treatment. The law relating to such patients in this matter offers neither an act nor a code. The law is to be found in court decisions. It might, at first sight, appear that a practice situation in which a patient with undoubted mental capacity or, at least, sufficient mental capacity to understand and accept what is proposed, presents no legal problem. But a closer examination of mental processes encountered in patients who may be in pain, distress and pressing need reveals that communication between the treater and the treated may be subtle and complex, and that the meeting of minds required in law to ensure that a patient has genuinely agreed to a detailed proposal is anything but simple.