Medical law: Text, cases, and materials

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Citation:

Jackson, E. (2016). Medical law: Text, cases, and materials (4th ed.). Oxford University Press.

Chapter Summary:

The textbook “Medical Law: Text, Cases, and Materials” by Emily Jackson provides a comprehensive overview of medical law, structured across multiple detailed chapters, each focusing on specific aspects of the field. Here is an overview of the contents sectioned by groups of chapters:

1. An Introduction to Bioethics:
   • Introduction to the subject of bioethics, discussing its importance and the methods of making ethical decisions.
   • Exploration of religious and secular bioethics, including common justificatory strategies.
   • Discussion on the social construction of the body and the notion of body ownership.
2. The Provision of Health Care Services:
   • Examination of the NHS, resource allocation, and public health.
   • Analysis of different rationing strategies within the NHS and the role of the National Institute for Health and Care Excellence (NICE).
   • Overview of judicial review, human rights, and public health interventions.
3. Medical Malpractice:
   • Introduction to medical malpractice, including breach of contract and negligence.
   • Detailed coverage of the existence of duty of care, breach, causation, and defenses.
   • Discussion on clinical negligence costs, compensation culture, and NHS complaints system.
4. Consent:
   • Understanding the importance of patient information and legal protection for patient interests.
   • Analysis of capacity and voluntariness in the context of consent.
   • Exploration of the principle of autonomy, especially concerning pregnant women.
5. Mental Health Law:
   • Historical context and policy evolution in mental health law.
   • Examination of mental illness definitions, admission procedures, and patient treatment regulations.
   • Consideration of discharge procedures and community care.
6. Confidentiality:
   • Discussion on the duty of confidentiality and exceptions to this duty.
   • Legal frameworks including common law, the Human Rights Act, and the Data Protection Act.
   • Addressing confidentiality for patients lacking capacity and deceased patients.
7. Genetic Information:
   • Introduction to genetic information and its implications for privacy.
   • Coverage of genetic discrimination, direct-to-consumer testing, and pharmacogenetics.
8. Clinical Research:
   • Regulatory frameworks for animal and human clinical research.
   • Ethical codes and consent to participation in research.
   • Analysis of research misconduct and conflicts of interest.
9. The Regulation of Medicines:
   • Defining medicinal products, the issue of lifestyle drugs, and enhancement.
   • Licensing procedures, classification, and regulation impact.
   • Overview of European regulation and product liability.
10. Organ Transplantation:
    • Ethical and legal considerations of dead and living donors.
    • Discussion on the shortage of organs and the potential for organ markets.
    • Examination of xenotransplantation.
11. Embryo and Stem Cell Research:
    • Moral status of the embryo and arguments surrounding embryo research.
    • Regulatory framework in the UK and international perspectives.
12. Abortion:
    • Ethical debates on the moral status of the fetus and pregnant women’s rights.
    • Legal aspects including the Abortion Act 1967 and special situations.
    • Comparative analysis with abortion laws in other jurisdictions.
13. Liability for Occurrences Before Birth:
    • Legal considerations of wrongful life, wrongful pregnancy, and wrongful birth cases.
    • Analysis of parental actions and implications for medical practice.
14. Assisted Conception:
    • Regulatory frameworks and ethical considerations of assisted conception.
    • Detailed discussion on licensing, access to treatment, and genetic diagnosis.
15. Surrogacy:
    • Legal and ethical perspectives on surrogacy.
    • Examination of surrogacy regulations and international practices.
16. End-of-Life Decisions:
    • Legal frameworks and ethical considerations surrounding euthanasia and assisted suicide.
    • Comparative analysis of end-of-life decisions in different jurisdictions.

This comprehensive structure ensures a thorough understanding of medical law, integrating case studies and materials to illustrate key points and developments in the field.

Key Concepts:

1. Bioethics:
   • Religious vs. Secular Bioethics: Distinctions between moral frameworks derived from religious traditions and those based on secular principles.
   • Ethical Decision-Making: Strategies such as utilitarianism, deontology, and virtue ethics used to navigate complex moral dilemmas.
   • Body Ownership: Theories regarding whether individuals have ownership over their bodies and implications for medical consent and autonomy.
2. Provision of Health Care Services:
   • NHS Structure and Rationing: Organization of the National Health Service (NHS) and methods for allocating scarce medical resources.
   • Role of NICE: The National Institute for Health and Care Excellence (NICE) and its impact on health care prioritization.
   • Public Health Law: Legal foundations and interventions aimed at protecting and improving public health.
3. Medical Malpractice:
   • Duty of Care: Legal obligation of health care providers to adhere to a standard of reasonable care.
   • Negligence: Breach of duty leading to harm, including elements of causation and defenses against negligence claims.
   • Clinical Negligence Reforms: Proposed changes to improve the handling of medical malpractice claims and reduce associated costs.
4. Consent:
   • Patient Information: Legal requirements for informing patients about medical procedures and risks.
   • Capacity and Voluntariness: Determining patients’ ability to consent and the influence of coercion or undue pressure.
   • Autonomy: Respecting patients’ rights to make their own medical decisions, with particular focus on pregnant women.
5. Mental Health Law:
   • Historical Evolution: Development of mental health policies and laws, including deinstitutionalization.
   • Involuntary Admission: Legal criteria and procedures for admitting patients to mental health facilities without their consent.
   • Human Rights: Impact of the Human Rights Act on the treatment and rights of mentally ill patients.
6. Confidentiality:
   • Legal Duty: Obligation of medical professionals to maintain patient confidentiality.
   • Exceptions: Circumstances under which confidentiality can be breached, such as public interest or patient consent.
   • Data Protection: Regulatory frameworks governing the handling of patient data, including the Data Protection Act.
7. Genetic Information:
   • Privacy Concerns: Issues surrounding the collection, use, and sharing of genetic information.
   • Discrimination: Risks of genetic discrimination by insurers, employers, and other entities.
   • Direct-to-Consumer Testing: Legal and ethical challenges posed by commercial genetic testing services.
8. Clinical Research:
   • Regulations and Ethical Codes: Guidelines governing research on humans and animals, including international codes like the Helsinki Declaration.
   • Consent in Research: Ensuring informed consent for research participants, especially those lacking capacity.
   • Research Misconduct: Identifying and addressing conflicts of interest and fraudulent practices in clinical research.
9. Regulation of Medicines:
   • Medicinal Product Definition: Legal criteria for classifying substances as medicines.
   • Licensing and Regulation: Procedures for obtaining marketing authorization and post-licensing oversight.
   • Product Liability: Legal responsibilities of manufacturers for harm caused by medicinal products.
10. Organ Transplantation:
    • Ethical Issues: Moral considerations of using dead and living donors for organ transplantation.
    • Organ Shortage: Strategies to address the scarcity of transplantable organs, including debates over organ markets.
    • Xenotransplantation: Practical and ethical challenges of using animal organs for human transplantation.
11. Embryo and Stem Cell Research:
    • Moral Status of Embryos: Ethical debates on whether embryos should be accorded moral status.
    • Regulation: Legal frameworks governing embryo and stem cell research, including the Human Fertilisation and Embryology Act.
    • International Perspectives: Comparison of regulations across different countries.
12. Abortion:
    • Ethical Considerations: Moral arguments for and against abortion, focusing on the status of the fetus and women’s rights.
    • Legal Framework: Laws regulating abortion, including the Abortion Act 1967 and related case law.
    • Comparative Law: Abortion laws in other jurisdictions, such as Northern Ireland, Ireland, and the United States.
13. Liability for Occurrences Before Birth:
    • Wrongful Life and Birth: Legal claims arising from congenital disabilities and failed sterilization procedures.
    • Parental Actions: Analysis of legal actions parents can take for prenatal injuries or wrongful pregnancies.
14. Assisted Conception:
    • Regulatory Oversight: Role of the Human Fertilisation and Embryology Authority in regulating assisted conception.
    • Ethical Issues: Ethical debates surrounding assisted reproductive technologies and access to treatment.
    • Genetic Diagnosis: Legal and ethical considerations of preimplantation genetic diagnosis.
15. Surrogacy:
    • Legal Status: Legal recognition and regulation of surrogacy arrangements.
    • Commercialization: Ethical debates over commercial vs. altruistic surrogacy.
    • Parenthood Transfer: Legal procedures for transferring parenthood from surrogate to intended parents.
16. End-of-Life Decisions:
    • Euthanasia and Assisted Suicide: Legal and ethical issues surrounding the right to die.
    • Comparative Perspectives: End-of-life decision-making laws in different countries.
    • Incapacity: Legal frameworks for making end-of-life decisions for patients lacking capacity.

These key concepts form the foundation of understanding medical law as discussed in Jackson’s comprehensive textbook.

Critical Analysis:

1. Bioethics:
   • The text provides a balanced exploration of both religious and secular bioethics, highlighting how diverse ethical frameworks impact medical decision-making.
   • Critically, the discussion on body ownership challenges traditional notions of bodily autonomy by introducing complex scenarios where ownership rights may conflict with public health needs or societal values.
2. Provision of Health Care Services:
   • Jackson’s analysis of the NHS’s resource allocation strategies is thorough, detailing the ethical and legal implications of rationing healthcare.
   • The role of NICE in making explicit rationing decisions is particularly well-examined, showcasing how transparency in healthcare decisions can both aid and complicate the fair distribution of resources.
3. Medical Malpractice:
   • The critique of the negligence system is incisive, focusing on the high costs to the NHS and the often inadequate remedies provided to injured patients.
   • Jackson suggests potential reforms, such as alternative dispute resolution mechanisms, which could provide more effective and equitable solutions for medical malpractice claims.
4. Consent:
   • The distinction between legal requirements and ethical considerations in obtaining patient consent is well-articulated, emphasizing the need for a nuanced approach to patient autonomy.
   • The exploration of capacity and voluntariness highlights significant legal challenges, particularly in cases involving vulnerable populations like children and mentally incapacitated adults.
5. Mental Health Law:
   • Jackson’s historical perspective on mental health law provides valuable context for understanding contemporary policies and their impact on patients’ rights.
   • The analysis of involuntary admission procedures under the Mental Health Act is critical, raising questions about the balance between patient autonomy and public safety.
6. Confidentiality:
   • The discussion on confidentiality is robust, examining the tension between maintaining patient privacy and the need for disclosure in certain circumstances.
   • Jackson’s critique of the Data Protection Act and its effectiveness in safeguarding patient information is particularly insightful, suggesting areas for potential legal reform.
7. Genetic Information:
   • The ethical concerns surrounding genetic privacy and discrimination are well-explored, emphasizing the need for stringent regulatory frameworks to protect individuals from misuse of genetic data.
   • Jackson’s analysis of direct-to-consumer genetic testing raises important questions about the adequacy of current regulations and the ethical implications of widespread access to genetic information.
8. Clinical Research:
   • The evaluation of ethical codes and regulations governing clinical research is comprehensive, highlighting both strengths and limitations of existing frameworks.
   • Jackson’s critique of research misconduct and conflicts of interest underscores the need for rigorous oversight to maintain the integrity of clinical research.
9. Regulation of Medicines:
   • Jackson provides a detailed examination of the regulatory processes for medicinal products, emphasizing the challenges in defining and classifying medicines.
   • The discussion on product liability is critical, questioning whether current legal frameworks adequately protect consumers from harm caused by defective medicines.
10. Organ Transplantation:
    • The ethical debates surrounding organ transplantation, particularly the use of living donors and the concept of a market for organs, are thoughtfully analyzed.
    • Jackson’s critique of xenotransplantation highlights both practical and ethical concerns, suggesting that further research and regulation are needed to address these issues.
11. Embryo and Stem Cell Research:
    • The text provides a balanced examination of the moral status of embryos, considering a range of ethical perspectives and their implications for research.
    • Jackson’s analysis of the regulatory environment in the UK is thorough, identifying both strengths and potential areas for reform to accommodate scientific advancements.
12. Abortion:
    • The ethical and legal debates on abortion are well-articulated, with Jackson providing a nuanced discussion of the competing rights and interests involved.
    • The comparative analysis of abortion laws in different jurisdictions highlights the diversity of approaches and the ongoing challenges in achieving a balance between women’s rights and fetal protection.
13. Liability for Occurrences Before Birth:
    • Jackson critically examines the legal and ethical implications of wrongful life and wrongful birth claims, questioning the adequacy of current legal remedies for affected families.
    • The text suggests that legal reforms may be necessary to address the complexities of these cases and ensure fair outcomes for all parties involved.
14. Assisted Conception:
    • The regulatory oversight of assisted conception is critically analyzed, with Jackson highlighting potential gaps and inconsistencies in the legal framework.
    • The ethical debates surrounding access to treatment and genetic diagnosis are well-explored, raising important questions about the future direction of assisted reproductive technologies.
15. Surrogacy:
    • The text provides a thorough analysis of the legal status and regulation of surrogacy, with Jackson critically examining the ethical implications of both commercial and altruistic surrogacy arrangements.
    • The discussion on the transfer of legal parenthood raises significant legal and ethical questions, suggesting that current laws may need to be revised to better protect the interests of all parties involved.
16. End-of-Life Decisions:
    • Jackson’s analysis of euthanasia and assisted suicide is comprehensive, considering both legal frameworks and ethical debates.
    • The comparative perspective on end-of-life decisions highlights the challenges in creating laws that balance individual autonomy with societal values and public safety.

Overall, Jackson’s “Medical Law: Text, Cases, and Materials” provides a critical and comprehensive analysis of key issues in medical law, integrating case studies and legal materials to illustrate complex ethical and legal debates. The text is well-structured and offers valuable insights into potential areas for legal reform and the ongoing challenges in the field.

Real-World Applications and Examples:

1. Bioethics:
   • Case Study: The case of Bland v. Airedale NHS Trust highlights the ethical complexities of withdrawing life-sustaining treatment from patients in a persistent vegetative state. The decision reflects the tension between respecting patient autonomy and the principle of beneficence.
   • Application: Hospitals often establish ethics committees to help navigate similar complex ethical dilemmas, ensuring that diverse perspectives are considered in decision-making.
2. Provision of Health Care Services:
   • Case Study: The implementation of the Health and Social Care Act 2012 illustrates how legal reforms can reshape healthcare delivery, emphasizing efficiency and patient choice within the NHS.
   • Application: Health care managers use legal frameworks to allocate resources effectively, balancing the need for cost control with ensuring access to essential services.
3. Medical Malpractice:
   • Case Study: The Bolam v. Friern Hospital Management Committee case set a precedent for determining the standard of care in medical negligence cases, where adherence to a body of professional opinion is considered sufficient.
   • Application: Medical practitioners adhere to established guidelines and protocols to minimize the risk of malpractice claims, continually updating their practices in line with current professional standards.
4. Consent:
   • Case Study: The case of Montgomery v. Lanarkshire Health Board underscores the importance of informed consent, requiring doctors to disclose all material risks to patients, significantly influencing patient-doctor communication.
   • Application: Medical professionals now ensure thorough discussions with patients about the risks and benefits of procedures, using decision aids to facilitate informed consent.
5. Mental Health Law:
   • Case Study: The Cheshire West and Chester Council v. P case expanded the interpretation of deprivation of liberty under the Mental Capacity Act, leading to increased protections for individuals in care.
   • Application: Care providers implement stringent safeguards and regular reviews to ensure that any deprivation of liberty is lawful and in the best interests of the patient.
6. Confidentiality:
   • Case Study: The W v. Egdell case illustrates the complexities of breaching confidentiality in the public interest, where a psychiatrist disclosed a patient’s information to prevent harm.
   • Application: Medical professionals are trained to carefully balance patient confidentiality with public safety, often consulting legal and ethical guidelines when facing potential breaches.
7. Genetic Information:
   • Case Study: The regulation of direct-to-consumer genetic testing services, such as 23andMe, highlights concerns about the accuracy of tests and the potential for genetic discrimination.
   • Application: Policymakers and regulatory bodies develop and enforce standards for genetic testing companies to protect consumers and ensure the responsible use of genetic data.
8. Clinical Research:
   • Case Study: The Nuremberg Code and subsequent Helsinki Declaration established foundational ethical principles for conducting medical research, emphasizing informed consent and the welfare of research subjects.
   • Application: Institutional Review Boards (IRBs) rigorously review research proposals to ensure compliance with ethical standards and protect the rights and well-being of participants.
9. Regulation of Medicines:
   • Case Study: The thalidomide tragedy led to stricter regulations for drug approval processes, requiring rigorous clinical trials and evidence of safety and efficacy.
   • Application: Pharmaceutical companies must navigate comprehensive regulatory pathways, including preclinical studies, multiple phases of clinical trials, and post-marketing surveillance.
10. Organ Transplantation:
    • Case Study: The implementation of the Human Tissue Act 2004 in the UK established legal requirements for organ donation, emphasizing informed consent and the prohibition of organ trafficking.
    • Application: Hospitals and transplant organizations ensure compliance with legal requirements for consent and allocation, fostering public trust in the transplantation system.
11. Embryo and Stem Cell Research:
    • Case Study: The legal battles over human embryonic stem cell research funding in the United States, such as in the Sherley v. Sebelius case, highlight ongoing ethical and legal debates.
    • Application: Researchers must adhere to strict ethical guidelines and obtain necessary approvals for embryonic research, balancing scientific advancement with ethical considerations.
12. Abortion:
    • Case Study: The Roe v. Wade decision in the United States established a woman’s right to choose an abortion, significantly impacting abortion laws and access.
    • Application: Legal professionals and advocates work to navigate and influence abortion laws, ensuring that women’s reproductive rights are protected while addressing ethical and societal concerns.
13. Liability for Occurrences Before Birth:
    • Case Study: The McFarlane v. Tayside Health Board case addressed wrongful birth claims, where parents sought damages for the costs of raising a child born after a failed sterilization.
    • Application: Medical practitioners implement robust consent and sterilization procedures to prevent such claims, ensuring that patients fully understand the risks and outcomes of procedures.
14. Assisted Conception:
    • Case Study: The regulation of in vitro fertilization (IVF) and related technologies by the Human Fertilisation and Embryology Authority (HFEA) in the UK ensures ethical standards are maintained.
    • Application: Fertility clinics must comply with regulatory requirements for licensing, reporting, and patient care, ensuring ethical practices in assisted reproduction.
15. Surrogacy:
    • Case Study: The Re X (A Child) (Surrogacy: Time limit) case illustrates the legal complexities of transferring parenthood in surrogacy arrangements, highlighting the need for clear legal frameworks.
    • Application: Legal practitioners specializing in family law assist clients in navigating surrogacy agreements and ensuring that all legal requirements are met for the transfer of parenthood.
16. End-of-Life Decisions:
    • Case Study: The Nicklinson v. Ministry of Justice case in the UK examined the legality of assisted suicide, highlighting the ethical and legal tensions in end-of-life decision-making.
    • Application: Healthcare providers develop policies and protocols for end-of-life care that respect patient autonomy while complying with legal restrictions on euthanasia and assisted suicide.

Jackson’s textbook effectively integrates real-world cases and examples to illustrate the application of medical law principles, providing practical insights for legal and healthcare professionals navigating complex ethical and legal landscapes.