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About this book

This textbook is an ambitious and engaging introduction to the more advanced writings on medical law and ethics, primarily designed to allow students to ‘get under the skin’ of the topic and begin to build their critical thinking and analysis skills. Each chapter is structured around key questions and debates that provoke deeper thought and, ultimately, a clearer understanding. The aim of the book is not to present a complete overview of theoretical issues in medical law and ethics, but rather to illustrate the current debates which are currently going on among those working in and shaping the area. The text features summaries of the views of notable experts on key topics and each chapter ends with a list of guided further reading.

A perfect book for students taking a module in medical law, or for those wanting to deepen their knowledge.

Table of Contents

Chapter 1. General Ethical Theories

Abstract
It is interesting how many law degree courses and textbooks are entitled ‘Medical Law and Ethics’. It would be unthinkable to write a textbook on medical law or design a course on it without including a discussion of general ethical theories, often as the opening chapter or seminar. Indeed, that is exactly what we have done with this book. But our colleagues don’t do that with other subjects on the legal curriculum. Books on contract law, land law or constitutional law, for example, do not tend to emphasise ethical principles in the same way. It would look odd to have a book entitled ‘Tort Law and Ethics’, although that is de rigueur for medical law.
Imogen Goold, Jonathan Herring

Chapter 2. Consent

Abstract
The need for consent before a treatment can be given, or a procedure performed, is one of the cornerstone principles of medical law. But while it might seem merely a matter of asking the patient whether she is happy to be treated or not, the reality is less straightforward. It is clear that the patient can give effective consent only if she has capacity, but the definition of capacity is complex. Should someone who refuses treatment on the basis of very strict religious views be treated against his will? Can a woman in the throes of a painful labour give valid consent? How much information should patients be given? Can they be given too much information? And what if they would rather not know? What weight should the decisions of competent children have on decisions about their medical treatment? Are there some procedures that will be unlawful even if the patient gives consent?
Imogen Goold, Jonathan Herring

Chapter 3. Capacity

Abstract
The concept of capacity plays a central role in the law. Those who lack capacity are deemed unable to make decisions for themselves. Decisions are made by others based on an assessment of what is in the best interests of a person lacking capacity. Those with capacity are free to make decisions about their lives, subject to the constraints of the law. No one is permitted to make decisions on behalf of a competent person, unless, for example, they have been appointed as an agent by that person. If you have capacity you can consent to an operation, decide to enter a contract or agree to meet someone. If you do not have capacity then these decisions are made on your behalf.
Imogen Goold, Jonathan Herring

Chapter 4. Medical Negligence

Abstract
Medical negligence is one of the main areas of litigation in relation to medical practitioners’ actions. Every day, doctors, surgeons and other healthcare professionals work to cure the sick and injured. Inevitably, mistakes are made and people are harmed. Where such mistakes were foreseeable and could have been avoided, the medical professional may be held responsible and will be required to compensate the patient for the harm suffered. The law in this area is complex and much is contested.
Imogen Goold, Jonathan Herring

Chapter 5. Reproduction

Abstract
Reproduction involves decisions relating to an aspect of human experience that deeply affects an individual’s identity, body and future life experience. As Allen Buchanan et al. suggest, ‘the capacity to be … self-determining is a central condition of personhood’. It is important that we respect and protect these choices to enable people to live the best lives they can. Reproduction is important for many people, and so it might be particularly important to respect their autonomy in this sphere of experience.
Imogen Goold, Jonathan Herring

Chapter 6. Abortion

Abstract
The status of the foetus is one of the most fiercely debated issues in medical law and ethics. This is because it raises some profound questions about what it means to be a person and what is valuable about life. People’s feelings can run high. To some the embryo is a person from the moment of conception and abortion is akin to murder. To others life does not begin until birth and claiming ‘foetal rights’ undermines the rights women have. It is commonly believed that the view you take about foetal status will determine what you think about abortion. However, as we shall see in Debate 2, a coherent case can be made for claiming a foetus is a person but that abortion should still be legally permitted. For this first debate, however, we will focus on the arguments over the status of the foetus.
Imogen Goold, Jonathan Herring

Chapter 7. Organ Donation

Abstract
Before some of the key issues in the debates over organ donation are examined, we will outline the law on organ donation in brief. Section 1 of the Human Tissue Act 2004 permits the removal, storage and use of organs for transplantation from a deceased person as long as there is ‘appropriate consent’. The consent can be oral or in writing. If the deceased consented (most typically by signing up to the organ donation register) then that decision must be respected, so a family does not have the right to overrule the refusal of a patient to donate or a desire to donate. That does not mean that the doctors must use the organs of a person who has signed on the register. There may be good reasons why their organs are inappropriate. Or indeed the doctors are entitled to decide not to use the organs given the strong opposition of relatives.
Imogen Goold, Jonathan Herring

Chapter 8. Selling and Owning Human Body Parts

Abstract
In the last chapter, we looked at the specific debates around organ donation and how the law provides people with a say in what is done with their organs. In this chapter, we look at two further debates about the sorts of control people should have over their body parts.
Imogen Goold, Jonathan Herring

Chapter 9. Death

Abstract
What does it mean to say that a person is dead? It is only in recent years that this question has become an issue which has troubled lawyers and ethicists. Of course, in many cases there is really little to argue about. The person has died on any definition. However, increasingly the issue is less straightforward. Two factors in particular have made the question of the timing of death an important one.
Imogen Goold, Jonathan Herring

Chapter 10. Ending Life

Abstract
A doctor may not advise a patient how to kill himself. But a doctor may give objective advice about the clinical options (such as sedation and other palliative care) which would be available if a patient were to reach a settled decision to kill himself. The doctor is in no danger of incurring criminal liability merely because he agrees in advance to palliate the pain and discomfort involved should the need for it arise. This kind of advice is no more or less than his duty. The law does not countenance assisted suicide, but it does not require medical practitioners to keep a patient in ignorance of the truth lest the truth should encourage him to kill himself. The right to give and receive information is guaranteed by article 10 of the Convention. If the law were not as I have summarised it, I have difficulty in seeing how it could comply
Imogen Goold, Jonathan Herring
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