Human rights and healthcare Book

Table of Cases xi

Table of Legislation xvii

1 Introduction: Human Rights in Healthcare 1

I Sources of Human Rights Law 4

(a) International Human Rights Treaties 4

(b) The British Constitution and Common Law Rights 7

(c) The Human Rights Act 1998 9

II The Human Rights Relevant to Medical Law 12

(a) Privacy-related Rights 12

(b) The Right to Life 13

(c) The Right to Dignity 14

(d) Reproductive Autonomy 15

Recommended Further Reading 15

2 A Right to Treatment? The Allocation of Resources in the National Health Service 17

I Rights, Health and Resources 17

(a) Rights to Healthcare 17

(b) The Ministerial Duty to Promote a Comprehensive and Free Health Service 20

(c) Ethical Issues in Resource Allocation 23

II The General Rule: No Right to Treatment 27

III Procedural Aspects of a Right to Treatment 29

(a) The Equality Principle 29

(b) Procedural Propriety 30

IV A Right to Basic Life-Sustaining Treatment? 33

V Conclusion 36

Recommended Further Reading 36

3 Ensurig Quality Healthcare: An Issue of Right or Duties? 37

I The Doctor-Patient Relationship 37

II The Legal Requirements of Negligence 39

(a) Establishing a Duty of Care 39

(b) Proving that the Doctor has Breached his Duty of Care 41

(c) The Final Hurdle: Did the Breach Cause the Harm? 47

(d) Negligence: Conclusion 53

III Non-fault Compensation: Escaping the Blame Culture 53

IV Conclusion 56

Recommended further reading 57

4 Autonomy and Consent to Medical Treatment 59

I Autonomy, Consent and Choices 59

(a) Autonomy: The Ethical Principle 59

(b) Autonomy: The Legal Principle 61

II The Nature of Consent 65

(a) To what can we consent?65

(b) How do we consent? 68

III Comptent Consent 72

(a) Assessing Capacity 72

(b) The Capacity Test in Practice 75

IV Informed Consent 79

(a) The Meaning of Informed Consent 79

(b) The Legal Consequences of a Failure to Inform of Risks 80

(c) The Doctor's Standard of Care 82

(d) Causation of Harm 87

V Conclusion 89

Recommended Further Reading 90

5 Treating Incompetent Patients: Beneficence, Welfare and Rights 91

I The Principle of Beneficence and Conflicting Rights 91

II The Best Interests Test 94

(a) Medical Best Interests 94

(b) Broader Social Interests 98

(c) The Interests of Others 100

(d) Best Interests on a Statutory Footing 104

III Who Decides? 106

(a) Decision-making under the MCA 106

(b) Conflict Between Parents and Doctors 108

(c) Conflicts between Mature Minors and Parents or Doctors 111

IV Conclusion 116

Recommended Further Reading 117

6 Medical Confidentiality And the Right To Privacy 119

I Rights to Privacy and Confidentiality in the Medical Context 119

(a) The Concept of a Right to Privacy 119

(b) The Protection of Privacy in English Law 121

(c) Confidentiality and Privacy in the Medical Context 124

II Exceptions to the Duty of Confidentiality: Balancing Privacy Against Other Public Interests 126

(a) Disclosure with Consent 126

(b) Public Safety 128

(c) Freedom of the Press 128

(d) Parental Responsibility 131

(e) Anonymised Data for Research and Other Purposes 134

III Conclusion 136

Recommended Further Reading 137

7 Property Rights in the Body 139

I The Theory of Self-Ownership and the Role of Rights 139

II Property Rights in Human Material taken from Living Persons 143

III Property Rights and Dead Bodies 147

(a) The No Property Rule and Its Exceptions 147

(b) Organ Retention Scandals 150

(c) The Human Tissue Act 2004 154

(d) Shortage of Organs for Transplant 155

IV Conclusion 157

Recommended further reading 157

8 Medically Assisted Conception and a Right to Reproduce? 159

I The Origins of a Right to Reproduce 160

II Access to Treatment: A Right to Produce in Practice? 164

(a) Conflicting Interests I: Welfare of the Child 165

(b) Conflicting Interests II: Consent of Gamete Donors 167

(c) Conflicting Interests III: Parties to a Surrogacy Arrangement 170

(a) Conflicting Interests IV: Interests of Society 173

III Assigning Parentage: Giving Legal Recognition to the Right to Reproduce? 173

(a) Identifying the Mother 174

(b) Identifying the Father 175

IV A Right to Reproduce a Healthy Child? Selection of Embryos 177

V Conclusion 178

Recommended Further Reading 179

9 Termination of Pregnancy: A Conflict of Rights 181

I The Fetus 181

(a) A Right of Life for the Fetus? 181

(b) The Ethical Background to the Right to Life Debate 184

(c) The Fetus in English Law 187

II The Mother 190

(a) A Right to Choose for the Mother? 190

(b) The Mother's Rights in English Law 192

III The Father 197

IV The Medical Professionals 199

V Conclusion 201

Recommended Further Reading 202

10 Pregnancy and Freedom of Choice 203

I Refusal of Medical Treatment During Pregnancy 203

(a) Freedom of Choice and the Pregnant Woman 203

(b) Competency during Pregnancy 208

II Preventing Pre-natal Harm 212

(a) Harming the Fetus 212

(b) Harming the Future Child 214

III Wrongful Conception and Birth: Financial Recompense for an Unwanted Pregnancy? 218

(a) The Nature of Wrongful Conception and Wrongful Birth Claims 219

(b) Is a Child Always a Blessing? Reasons for Denying Compensation for an Unwanted Pregnancy 220

(c) The Post-McFarlane Fudge 223

IV Conclusion 224

Recommended Further Reading 225

11 The Right to Life at the End of Life 227

I The Right to Life in Context 227

(a) The Right of Life in Article 2 ECHR 227

(b) The Boundaries of the Right of Life: Defining Death 229

(c) The Sanctity of Human Life 231

II The Bland Principles 233

(a) Was Bland still alive? 234

(b) Bland's Best Interests 235

(c) Is Artificial Feeding a Form of Medical Treatment? 238

(d) Is Withdrawing Treatment an Act or an Omission (and does it matter)? 239

(e) Conclusion: The Bland Principles 242

III The Bland Principles in Practice 242

(a) The Beginning of a Slippery Slope? 242

(b) Duty to Provide ANH to Competent Patients 244

(c) The Bland Principles in a Human Rights Age 245

IV Equal Rights to Life: The Conjoined Twins Case 248

Conclusion 251

Recommended Further Reading 251

12 The Law and Ethics of Assisted Dying: Is There a Right to Die? 253

I The Criminal Law Prohibition on Assisted Dying 253

II Life and Death: A Right to Die as a Corollary of a Right to Life? 259

III A Right to Die with Dignity? 261

IV Autonomy, Private Life and Death 264

(a) The Right to Respect for Private Decisions about Dying 264

(b) Proportionate State Interference: Protecting the Rights of the Vulnerable 265

V Discrimination of the Disabled: Suicide versus Assisted Suicide 271

VI Conclusion 272

Recommended Further Reading 274

Bibliography 275

Index 283