Medical Law: Text, Cases, and Materials

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Jill Peay 'Mental incapacity and criminal liability: Redrawing the fault lines?' International Journal of Law and Psychiatry40 (2015) pp.25-35 it’s obvious the Australian government’s allowing it to happen. They’re not stopping the kids getting their passports. If they started doing that then they’re really saying, ‘no you’re not allowed to do it at all because it’s illegal’. But the government’s not doing that, they’re letting it happen. Childless by circumstance – Using an online survey to explore the experiences of childless women who had wanted children' Reproductive Biomedicine and Society Online (2021) Vol.12 pp.44-55 (with Dilan Chauhan and Joyce C. Harper) One response to the issues raised by overseas travel is to try to educate people about the implications of undertaking CBR, by providing information about clinical standards of care and the legal status of children born from such arrangements. Counsellors and patient support group representatives interviewed by Culley et al in the UK, for example, thought the only feasible response to reproductive travel is to educate people, and ensure that ‘they go into it with their eyes open and fully aware of the implications’. 52

A gap between what matters to experts and what matters to patients is also evident in relation to the law, including but not limited to criminal prohibitions, citizenship and the rules of legal parentage. For example, in our study, it is striking how few intended parents of children born through surrogacy had sought legal formalisation of their relationship. Tom, who had undertaken surrogacy in India said: Provides a clear and accessible analysis of the various ways in which human reproduction is regulated. A comprehensive exposition of the law relating to birth control, abortion, pregnancy, childbirth, surrogacy and assisted conception is accompanied by an exploration of some of the complex ethical dilemmas that emerge when one of the most intimate areas of human life is subjected to regulatory control. Throughout the book, two principal themes recur. First, particular emphasis is placed upon the special difficulties that arise in regulating new technological intervention in all aspects of the reproductive process. Second, the concept of reproductive autonomy is both interrogated and defended. Winner of the 2002 Society of Legal Scholars’ Annual Prize for Outstanding Legal Scholarship by a Young Legal Scholar. As Purshouse has observed, by characterising patients ‘as capable adults responsible for their own choice’, informed consent cases appear ‘to be developing separate rules to those governing the rest of medical negligence’, 11 where judges continue to draw attention to patients’ vulnerability. 12 For the UK Supreme Court to draw an analogy between patients and consumers in the context of informed consent is also interesting given the increasing recognition that consumers fail routinely to understand and use information disclosures. After years of unsuccessful IVF in Australia, Leah travelled to Greece to undergo IVF and egg donation. She explained that her GP in Australia was helping her: In this journal, Arvind and McMahon have drawn attention to one way in which the judgment in Montgomery, in fact, diverges from the GMC’s partnership model of decision making. 8 Lords Kerr and Reed pointed to the increasing tendency to regard patients as rights holders, and ‘as consumers exercising choices’, 9 to whom what looks like the principle of caveat emptor might sometimes apply:In our study, potential reproductive travellers had sought peer-to-peer information, advice and support from fellow members of internet forums and Facebook groups. This often involves users requesting information about other people’s experiences at specific overseas’ clinics or agencies, which fellow forum-users will answer. 48 As Tom says: To inform a more nuanced approach to the provision and regulation of fertility treatment, we must attend to the subjective experience of risk, quality, and care in CBR, especially when this involves what Angela Campbell calls ‘morally ambiguous’ or even ‘ostensibly self-injurious’ choices. 20 In this article, we suggest that it is impossible to properly evaluate the role of law in CBR without attending to its impact upon participants’ lived experiences, and that, in the light of a dramatic mismatch between law’s goals and reproductive travellers’ experiences of law, there may be grounds for some form of realignment. II. ALTRUISTIC OR COMMERCIAL: AN UNTENABLE DISTINCTION? Review from previous edition This is the best text, cases and materials book on medical law around. It explains the law and ethical literature in an accessible manner while still being thorough. I cannot recommend it highly enough." - Dr Craig Purshouse, Senior Lecturer in Law, University of Liverpool In addition to variation in patients’ appetite for and use of information, there is also variation in how much value they attach to information disclosures. Arvind and McMahon have pointed to evidence that what some patients value most in their pre-treatment encounters with doctors is not necessarily information about risks and alternatives 100; instead, patients might be more concerned about whether their health concerns are being taken seriously, and whether they are treated with compassion and respect. 101 Surveys of what matters most to patients often rank being able to trust healthcare professionals above the right to make autonomous decisions. 102 Interpersonal skills are important: patients want their doctors to be sensitive to the embarrassment of being naked in front of fully dressed professionals, to introduce themselves, and not to speak to colleagues over them, as if they are not there. 103

There are multiple differences between pre-contractual information disclosures to consumers and the process of gaining a patient’s informed consent to medical treatment. First, as Tallis explained in the context of a debate over whether patients should be redefined as customers: Informed Consent and the Impotence of Tort’ in S. McLean (ed) First Do No Harm(Aldershot, Ashgate, 2006) 273-86 Whose Death is it Anyway? Euthanasia and the Medical Profession’ (2004) 57 Current Legal Problems 415-442

Crucial to this ‘behavioural critique’ is the recognition that the failure to understand disclosures is not, as is sometimes assumed, confined to people who are especially vulnerable. Even if information disclosures are more likely to be used by ‘the more affluent, well-educated middle-class consumers’, 48 the tendency to misunderstand disclosures and misread information, is certainly ‘not limited to the uneducated and unintelligent’. 49