7. Contraception, Abortion, and Pregnancy

This chapter examines the legal and ethical aspects of contraception, abortion, and pregnancy. Topics discussed include the use and function of contraception; the availability of contraception; teenage pregnancy rates; tort liability and contraception; ethical issues concerning contraception; the law on abortion; the legal status of the foetus; abortion ethics; and controversial abortions. A major current issue is the extent to which, if at all, the criminal law should be involved in the law of abortion. The chapter also considers arguments on legal interventions for pregnant women; for example, imprisoning a drug-using mother to ensure that her unborn child does not suffer from the consequences of her drug use.

6. Confidentiality

This chapter examines the legal and ethical aspects of medical confidentiality. The discussion include the legal basis of confidentiality; defences to claims of breach of confidentiality; the Data Protection Act 1998; legal remedies in confidentiality cases; patient access to their own health information; and ethical arguments for and against confidentiality. Underpinning this chapter is the tension between requiring that a patient’s confidences are kept and the fact that sometimes there is an overwhelming reason why confidentiality needs to be breached. A further difficulty for this topic is that once confidentiality has been breached it can be very difficult to formulate an effective legal remedy.

10. Dying and Death

This chapter examines the legal and ethical aspects of death. It begins with a discussion of the difficulty of the choosing a definition of ‘death’. It then sets out the law on a range of ‘end-of-life issues’, including euthanasia, assisted suicide, and refusal of medical treatment. It considers some particularly complex cases in which the law is not always easy to apply. These include the administration of pain-relieving drugs, the treatment of severely disabled newborn children, and the position of patients suffering from PVS. Next, the chapter considers the ethical debates surrounding euthanasia, assisted suicide, and terminating treatment. This is followed by a discussion of palliative care and hospices.

9. Organ Donation and the Ownership of Body Parts

This chapter examines legal and ethical aspects of organ donation and body part ownership. Topics discussed include the Human Tissue Act 2004; liability for mishaps from organ transplant; the shortage of organs for transplant; xenotransplantation; selling organs; face transplants; and the living body as property. Running through this chapter is a discussion of whether it is preferable to see the body and parts of the body as property or whether they need their own system of legal protection through a statute. This debate ties into broader discussions about the nature of the self and what makes bodies valuable.

5. Mental Health Law

This chapter first considers statistics on mental health in the UK. It then discusses the Mental Health Act (MHA) 1983; the MHA 1983 Code of Practice; reforms to the law under the 2007 Act; problems in mental health practice; critics of mental health; and paternalism as the ground for detention. It highlights the difficulty in striking the correct balance between protecting the public from the perceived threat of mentally disordered people and protecting the rights of those who suffer mental illness. The chapter also illustrates how the principle of autonomy, which plays such an important role in medical law and ethics, is given much less prominence in the area of mental health law.

1. Ethics and Medical Law

This chapter discusses various aspects of ethics and medical law. It begins with a definition of medical law. It then covers the nature of illness, the scope of medicine, the sociological impact of being ill, UK health statistics, and general ethical principles. This is followed by discussions of the notion of rights; patients’ obligations; principlism; hermeneutics; casuistry; feminist medical ethics; care ethics; virtue ethics; and communitarian ethics. It also explains the role of theology, relativism, and pragmatism in medical ethics. The chapter also explores the links between ethics and law. It cannot be assumed that because something is unethical it must be unlawful, nor that everything unlawful is necessarily unethical.

4. Consent to Treatment

This chapter examines the legal and ethical aspects of treating a patient without consent. It considers the meaning of ‘consent’ and the position of patients who lack the capacity to consent. For children who lack capacity, consent involves a delicate balance between the rights of the children and those of their parents. For adults lacking capacity, the Mental Capacity Act 2005 has emphasized the ‘best interests’ test, but has largely left open the question of how a person’s best interests are to be ascertained. The chapter also considers what weight should be attached to advance decisions (sometimes called living wills).

3. Medical Negligence

This chapter examines the legal and ethical aspects of medical negligence. It begins with an overview of the law and medical malpractice. It then discusses the law of negligence; the law of contract; medical malpractice litigation in practice; legal costs; the perception that medical negligence litigation is unsatisfactory; the NHS Redress Act 2006; the ‘no fault’ scheme; and the law governing medicines. The law in this area seeks to strike a balance between ensuring patients receive compensation if they have been harmed as a result of bad treatment, and allowing doctors professional freedom to determine which treatment is most appropriate for a particular condition.

8. Reproduction

This chapter examines legal and ethical aspects of assisted reproduction. Topics discussed include infertility; the concept of reproductive autonomy; criticisms of assisted reproduction; regulation of assisted reproductive technologies; criticisms of the Human Fertilisation and Embryology Act 1990; gamete donation; surrogacy; cloning; and genetic enhancement and eugenics. The chapter explores the extent to which the state should regulate decisions around reproduction or whether they should be left to the decision of the individuals concerned. Some people believe that the interests of children to be born should be taken into account, although there is extensive debates over how this should be done.

2. The Structure of the National Health Service and the Rationing of Healthcare Resources

This chapter examines the structure of the National Health Service (NHS) and some of the key issues facing those dealing with its management. Topics discussed include policymaking and central planning in the NHS; quality control; commissioning and planning services; the provision of services; structural issues; rationing; health inequalities; the General Medical Council; and efforts to control infectious diseases and prevent illness. The chapter also discusses the complex issue of the rationing of healthcare resources. The case law on the topic is set out and there is a consideration of the ethical issues which are raised when decisions need to be made about who gets medical treatment.