Medicine, Patients and the Law

Citation

Brazier, M., Cave, E., & Heywood, R. (2023). Medicine, Patients and the Law (7th ed.). Manchester University Press.

Chapter Summary

The seventh edition has 22 chapters in three parts, about 625 pages of text plus tables of cases and legislation. It belongs to Manchester University Press's Contemporary Issues in Bioethics, Law and Medical Humanities series. Margaret Brazier wrote the first edition in 1987; Emma Cave joined for the fourth in 2007 and Rob Heywood for this one, and the preface explains that Cave and Heywood did most of the drafting. The publisher describes the edition as fully revised, with 100 new cases and three new chapters, covering Brexit-related regulatory reform and COVID-19 pandemic measures. The law is stated as at March 2022. The book deals with the law of England and Wales, with occasional reference to Scotland and to courts in the USA, Canada and elsewhere. An introduction explains the sources of medical law, from statute and retained EU law to the Human Rights Act 1998 and the common law.

Part I, Chapter 1: The practice of medicine: yesterday

A history of law's engagement with medicine, from medical corporations and self-regulation to the Medical Act 1858 and early negligence actions. The authors argue against the claim that medical law is a young subject and against the assumption that judges deferred to doctors until the late twentieth century.

Chapter 2: The practice of medicine: today

The regulatory framework: the NHS, whistleblowing and the duty of candour, the General Medical Council, registration, revalidation and fitness to practise.

Chapter 3: Doctors' responsibilities: patients' rights

The Human Rights Act 1998 and the Convention articles most relevant to medicine, then the NHS Constitution, access to healthcare, NICE, challenges to resource allocation decisions, timely treatment and treatment abroad.

Chapter 4: Medicine, moral dilemmas and the law

The ethical principles of autonomy, beneficence, non-maleficence and justice, virtue ethics and the ethics of care, and the sanctity and value of life, including the distinction between killing and letting die.

Chapter 5: A relationship of trust and confidence

Confidentiality and medical privacy: the justifications for disclosure, disclosure in the public interest, genetic information, the data protection regime and patients' access to their records.

Part II, Chapters 6–7: Agreeing to treatment; Capacity, consent and compulsion

Part II examines what the law offers a patient dissatisfied with care, starting from two principles the introduction sets out: the patient must agree to treatment, and treatment must be given with reasonable skill and care. Chapter 6 traces informed consent from Sidaway to Montgomery, along with causation and the therapeutic exception. Chapter 7 covers capacity, best interests under the Mental Capacity Act 2005, deprivation of liberty, advance decisions, the Court of Protection and compulsory treatment under the Mental Health Act 1983.

Chapters 8–9: Clinical negligence; Malpractice litigation

Chapter 8 covers duty, the standard of care under Bolam and Bolitho, causation and loss of a chance. Chapter 9 turns to litigation: funding, whom to sue, limitation periods, civil justice reform, expert evidence, awards of compensation, and whether there is a malpractice crisis.

Chapters 10–12: The criminal process and medical malpractice; Complaints and redress; Medical products liability

Gross negligence manslaughter (including the Sellu and Bawa-Garba cases) and corporate manslaughter; NHS complaints, redress schemes and the case for no-fault compensation; and liability for drugs and medical products, including the Consumer Protection Act, development risks, contaminated blood products and vaccine damage.

Part III, Chapters 13–16: Contraception, pregnancy and childbirth; Assisted conception; Embryo research; Abortion

Part III turns to questions about what society should allow. Chapter 13 covers sterilisation, wrongful conception, wrongful birth and wrongful life, maternal immunity and choice in childbirth. Chapter 14 covers licensing under the Human Fertilisation and Embryology Act, parental status, gamete donation, pre-implantation testing, mitochondrial donation and surrogacy. Chapter 15 takes in the 14-day rule, hybrid embryos and genome editing, and Chapter 16 the Abortion Act 1967, conscientious objection and early medical abortion at home.

Chapters 17–18: Doctors and children; Healthcare research

Chapter 17 covers the best interests test for babies and children, disputes between parents and doctors, Gillick competence and confidentiality for under-16s. Chapter 18 covers research governance, clinical trials (including COVID-19 trials), research ethics committees, consent, research with children and incapacitated adults, and biobanks.

Chapters 19–22: Defining death; Organ and tissue transplantation; The human body and its parts; The end of life

Chapter 19 asks how death is defined and whether a statutory definition is needed. Chapter 20 covers the Human Tissue Act 2004, living and deceased donation, deemed consent and the organ market. Chapter 21 deals with post-mortem examinations, retained body parts and their ownership. Chapter 22 closes the book with mercy killing, double effect, assisted suicide (Pretty and the DPP's prosecution policy), the Bland case, prolonged disorders of consciousness and DNACPR notices.

Key Concepts

Part I: Medicine, law and society (Chapters 1–5)

• Professional regulation: control of entry to practice, revalidation and fitness to practise through the GMC.
• Human Rights Act 1998: Convention rights enforceable against public authorities, including NHS bodies.
• Principles of medical ethics: autonomy, beneficence, non-maleficence and justice.
• Confidentiality: the duty of confidence and the limited grounds on which it may be breached.

Part II: Medical malpractice (Chapters 6–12)

• Informed consent: the duty to disclose material risks, reshaped by Montgomery.
• Mental capacity and best interests: the framework for treating adults who cannot decide for themselves.
• Bolam and Bolitho: the tests for the medical standard of care in negligence.

Part III: Matters of life and death (Chapters 13–22)

• Wrongful conception, birth and life: claims arising from negligent advice or treatment before or around birth.
• Parental status and surrogacy: who counts in law as mother and father after assisted conception.
• Gillick competence: when a child under 16 may consent to treatment.
• Deemed consent: the opt-out basis for deceased organ donation.
• Assisted dying: the prohibition on assisted suicide, prosecution policy and the legislative debate.

Critical Analysis

Strengths

• Readable for a broad audience. The preface states the aim of remaining readable to students, lawyers, health professionals and the general public, and the introduction explains legal sources and terminology (such as "claimant" for the older "plaintiff") for non-lawyers.
• Context and history. The chapters on medico-legal history and on ethical principles set the law in context, and the introduction argues a clear thesis: that the supposed conflict between law and medicine is a false one.
• Comprehensive coverage. The three parts run from regulation and rights through the whole of malpractice, including criminal liability, complaints and product liability, to reproduction, children, research, transplantation and the end of life.
• Fully updated. The seventh edition adds three chapters and about 100 new cases, and covers COVID-19 measures and the post-Brexit position of retained EU law.

Limitations

• No mental health law as such. The preface says so directly: the book does not cover mental health law, because doing so would double its length. Chapter 7 addresses capacity and compulsory treatment, using illustrative Court of Protection cases rather than the full case law.
• England and Wales. The introduction states that the book in general confines itself to the law of England and Wales; readers in Scotland need another source.
• Fixed at March 2022. The authors warn that the law was in flux and that "at the time of writing" recurs often. Later changes, for example to assisted dying legislation or to the Human Rights Act, will not be reflected.
• Not a casebook. The book is a survey with narrative analysis rather than a collection of extracts, so students who need the judgments in front of them will need a casebook as well.

Where It Fits in the Course

This book sits between a short introduction and a full textbook. Charles Foster's Medical Law: A Very Short Introduction is a brief, case-led overview that makes a good preview, but it dates from 2013; this book covers the same ground at much greater length and with the law to 2022. The two textbooks titled Medical Law and Ethics, by Jonathan Herring and by Shaun Pattinson, set out the rules for each topic together with the competing ethical arguments in the structure of a module text; one of them can serve as the main text with this book as a more discursive companion, or the reverse where a module values context and policy.

Mason & McCall Smith's Law and Medical Ethics, edited by Anne-Maree Farrell and Edward Dove, is a long-established and detailed account that also covers Scots law, and so fills one of this book's gaps. Emily Jackson's Medical Law: Text, Cases, and Materials combines commentary with extracts from the primary sources and is the natural partner for reading the leading judgments.

How to Use This Book

The book suits law students taking medical law, medical and nursing students who want to understand the legal framework of practice, and general readers. No legal background is assumed; the introduction covers what a newcomer needs about legal sources.

A practical plan:

• Begin with the introduction, which sets out the book's thesis and gives a map of all three parts.
• Core for a medical law module: Chapters 3 (rights and resources), 5 (confidentiality), 6–7 (consent and capacity), 8 (clinical negligence), and from Part III the topics the syllabus covers, typically 14–16 (assisted conception, embryo research, abortion), 17 (children), 20 (transplantation) and 22 (the end of life).
• Context chapters: Chapters 1, 2 and 4 are short and repay reading early; Chapter 4 in particular supplies the ethical vocabulary used throughout.
• Optional or specialist: Chapters 9–12 on litigation, criminal liability, complaints and product liability suit modules or essays focused on malpractice and patient safety; Chapters 13, 18, 19 and 21 can be read as the syllabus requires.

Read the leading cases alongside Chapters 6–8 and 22, where the analysis turns on a few landmark decisions. Because the text stops at March 2022, check each topic for later legislation and Supreme Court decisions before relying on it in an essay. For mental health law and for Scots law, use other sources.