Law and Medicine
Lecture 1 - Introduction to Law and Medicine
5 seminars:
● Assisted reproduction
● Abortion
● Clinical negligence
● Consent
● End of life decision making
The legal regulation of medicine
The moral and ethical debate
ABC v St George’s Healthcare NHS Trust - https://www.cascaidr.org.uk/2018/10/16/abc-v-st-
georges-healthcare-nhs-trust-south-west-london-st-georges-mental-health-nhs-trust-sussex-
partnership-nhs-foundation-trust-2017/
Lecture 2 - Contemporary Issues in Law and Medicine
Issue: Abortion
A woman has no right to an abortion, it is regulated by doctors. 2 doctors must agree that an
abortion can be performed. Therefore, medical professionals are seen as the gatekeepers
for abortion.
This has been criticised, as it places obstacles for a female’s choice.
The example of abortion illustrates two key (contrasting) models of decision making:
1. Paternalistic model
2. Autonomous decision making
These are the underpinning concepts of medical law.
We are starting to see a subtle transition towards an autonomy enhancing model, patients
rights and choices are being placed at the forefront.
English law does not promote altruistic behaviour, and there is no obligation to rescue.
However, a doctor may feel morally compelled to act, known as the hippocratic oath.
If a doctor does act, they assume responsibility, causing a duty of care to trigger, so if they
fall under the requisite standard, they may be liable.
P.P v HSE [2014]
● Pregnant woman with diagnosis of brain-stem death
● The aim was to sustain the lady to the point the foetus was viable, essentially a
human incubator.
● This was an Irish case, therefore the status of the foetus had an important role to
play considering Ireland’s position on abortion.
● Things to consider:
○ Is the woman in any pain?
, ○ What would the woman’s position/wishes been before the incident?
○ How do we make decisions for those who cannot make decisions for
themselves?
○ What is in their best interest?
○ Whose best interests - the woman’s or the foetus’s?
○ Which one prevails?
● If it was an English court, the foetus does not have legal status until the point of birth.
● The Court allowed the treatment to be discontinued, because of the age of the
foetus, it was not viable that it would reach a stage of sustainable growth.
Charlie Gard
• Charlie suffered from a rare inherited disease known as MDDS.
• He could not move his arms or legs or breathe unaided. His brain was also severely
affected.
Have to consider - what decision would be in Charlie’s best interest?
Assess how realistic the prospects of success were in terms of the treatment - the nature of
pioneering treatment, it was highly experimental.
• He was kept alive by a mechanical ventilator.
• His parents agreed that his quality of life in that condition was not worth living.
• However, they were offered the prospect of a new treatment in the USA,
deoxynucleoside therapy, which may have improved the disease.
• This has never been tried on human beings or animals with this particular disease.
• Charlie's parents asked the hospital to continue to keep Charlie alive by artificial means
until they could take him to the United States.
• The hospital refused to do so.
The court agreed with the hospital, there was no obligation to keep Charlie alive, it was not
in his best interest and did not promote his welfare.
• What do you think the outcome was and why?
• Gard and Others v United Kingdom App no 39793/17 (ECtHR, 27 June 2017).
• https://www.supremecourt.uk/news/permission-to-appeal-hearing-in-the-matter-of-
charlie-gard.html.
• https://www.theguardian.com/uk-news/2017/jul/28/charlie-gard.
Parents have parental responsibility, therefore are able to make medical decisions. Are they
a hollow right if the courts therefore agreed in the hospital’s favour? What do we mean by
the concept of futility? Sustaining Charlie in this condition was classified as futile. How can
we judge this?
,The case gathered media attention.
COMPLETE
Lecture 3 - Assisted Reproduction: Overview of Regulation
Why has this area of medicine and science captured the imagination of modern society?
Science and technology may encroach on issues, ‘playing god’ - contentious issue
Debate is underpinned by strong religious views, one of the issues pertains to the status of
the embryo and at what stage does life begin?
Scientific view of the embryo v the religious view - divergent views
Potential future concerns and dangers about the over development of science in this area,
does it push the boundaries too far?
https://www.theguardian.com/society/201?CMP=Share_i OSApp_Other .
https://www.bbc.co.uk/news/health-38328097.
http://www.bbc.co.uk/news/health-30742774.
Role of the law
‘Reproduction is a private and sensitive issue which is best left to individuals to resolve.
Public legislation should not regulate private morality’.
Fighting a losing battle?
Most of the time the law is dynamic, yet it still cannot keep pace within this area, as
technology is ever advancing and developments occur quickly.
‘No matter what the law does, it will always be on the back foot in its attempt to confront
some of the difficult issues raised by this area of science and medicine’
1) Why might this be the case?
2) How, if at all, can this problem be solved?
The legislation
● The Human Fertilisation and Embryology Act 1990 - key piece of legislation that
governs this area.
○ Assisted reproduction.
○ Embryo research.
● The Human Fertilisation and Embryology Act 2008 - it does not replace that first
guiding piece of legislation.
○ Amending legislation.
○ Key features of the old model of regulation retained.
■ Part 1: Amendments to HFEA 1990.
■ Part 2: Provisions relating to parenting.
■ Part 3: Miscellaneous and general provisions.
, Comment: The Human Fertilisation and Embryology Acts of 1990 and 2008
● The Warnock Committee Report into Human Fertilisation and Embryology 1984 led
to the old HFEA 1990.
○ Considerable gap between report and publication of legislation. Its primary
concern was with experimentation being undertaken on embryos. Concern
about experimentation was born out of media hype and these stories
captured the imagination of the public. The government had to strike a
delicate balance, if there was a too heavy approach, it would stifle the
innovation and creativity needed to take this field forward, as this type of
research would have advantages for society.
○ Legislation is permissive, it seeks to provide an overarching framework where
medicine and law can exist in harmony.
● Consider the role of the law in this field:
○ To set standards?
○ To act as a deterrent?
○ To act as a watchdog over the disciplines of medicine and science?
● Is a hard-line approach to regulation the answer here?
● The law is permissive.
● The law provides a regulatory framework.
Criticisms
● Lack of philosophical direction.
○ Doesn’t delve into the ethics, and steps away from contentious issues.
However is the law there to deal with moral questions? Or just to regulate and
provide guidance?
● Key areas ignored.
● The law cannot keep pace.
● Fair criticisms?
● Morality and ethics v the law.
● A pragmatic approach.
The Human Fertilisation and Embryology Authority
● HFEA 1990, section 5.
○ The legislation delegates most of its power out to the human fertilisation and
embryology authority. They act as the watchdogs over fertility treatments and
research.
● Http://www.hfea.gov.uk.
● A powerful regulatory body?
● Power versus accountability.
● The HFE Authority Code of Practice – supplements the primary legislation.
● Powers:
○ Can invoke criminal sanctions.
○ Can enter premises.
○ Can seize equipment and materials.
○ Can revoke licences.
Lecture 1 - Introduction to Law and Medicine
5 seminars:
● Assisted reproduction
● Abortion
● Clinical negligence
● Consent
● End of life decision making
The legal regulation of medicine
The moral and ethical debate
ABC v St George’s Healthcare NHS Trust - https://www.cascaidr.org.uk/2018/10/16/abc-v-st-
georges-healthcare-nhs-trust-south-west-london-st-georges-mental-health-nhs-trust-sussex-
partnership-nhs-foundation-trust-2017/
Lecture 2 - Contemporary Issues in Law and Medicine
Issue: Abortion
A woman has no right to an abortion, it is regulated by doctors. 2 doctors must agree that an
abortion can be performed. Therefore, medical professionals are seen as the gatekeepers
for abortion.
This has been criticised, as it places obstacles for a female’s choice.
The example of abortion illustrates two key (contrasting) models of decision making:
1. Paternalistic model
2. Autonomous decision making
These are the underpinning concepts of medical law.
We are starting to see a subtle transition towards an autonomy enhancing model, patients
rights and choices are being placed at the forefront.
English law does not promote altruistic behaviour, and there is no obligation to rescue.
However, a doctor may feel morally compelled to act, known as the hippocratic oath.
If a doctor does act, they assume responsibility, causing a duty of care to trigger, so if they
fall under the requisite standard, they may be liable.
P.P v HSE [2014]
● Pregnant woman with diagnosis of brain-stem death
● The aim was to sustain the lady to the point the foetus was viable, essentially a
human incubator.
● This was an Irish case, therefore the status of the foetus had an important role to
play considering Ireland’s position on abortion.
● Things to consider:
○ Is the woman in any pain?
, ○ What would the woman’s position/wishes been before the incident?
○ How do we make decisions for those who cannot make decisions for
themselves?
○ What is in their best interest?
○ Whose best interests - the woman’s or the foetus’s?
○ Which one prevails?
● If it was an English court, the foetus does not have legal status until the point of birth.
● The Court allowed the treatment to be discontinued, because of the age of the
foetus, it was not viable that it would reach a stage of sustainable growth.
Charlie Gard
• Charlie suffered from a rare inherited disease known as MDDS.
• He could not move his arms or legs or breathe unaided. His brain was also severely
affected.
Have to consider - what decision would be in Charlie’s best interest?
Assess how realistic the prospects of success were in terms of the treatment - the nature of
pioneering treatment, it was highly experimental.
• He was kept alive by a mechanical ventilator.
• His parents agreed that his quality of life in that condition was not worth living.
• However, they were offered the prospect of a new treatment in the USA,
deoxynucleoside therapy, which may have improved the disease.
• This has never been tried on human beings or animals with this particular disease.
• Charlie's parents asked the hospital to continue to keep Charlie alive by artificial means
until they could take him to the United States.
• The hospital refused to do so.
The court agreed with the hospital, there was no obligation to keep Charlie alive, it was not
in his best interest and did not promote his welfare.
• What do you think the outcome was and why?
• Gard and Others v United Kingdom App no 39793/17 (ECtHR, 27 June 2017).
• https://www.supremecourt.uk/news/permission-to-appeal-hearing-in-the-matter-of-
charlie-gard.html.
• https://www.theguardian.com/uk-news/2017/jul/28/charlie-gard.
Parents have parental responsibility, therefore are able to make medical decisions. Are they
a hollow right if the courts therefore agreed in the hospital’s favour? What do we mean by
the concept of futility? Sustaining Charlie in this condition was classified as futile. How can
we judge this?
,The case gathered media attention.
COMPLETE
Lecture 3 - Assisted Reproduction: Overview of Regulation
Why has this area of medicine and science captured the imagination of modern society?
Science and technology may encroach on issues, ‘playing god’ - contentious issue
Debate is underpinned by strong religious views, one of the issues pertains to the status of
the embryo and at what stage does life begin?
Scientific view of the embryo v the religious view - divergent views
Potential future concerns and dangers about the over development of science in this area,
does it push the boundaries too far?
https://www.theguardian.com/society/201?CMP=Share_i OSApp_Other .
https://www.bbc.co.uk/news/health-38328097.
http://www.bbc.co.uk/news/health-30742774.
Role of the law
‘Reproduction is a private and sensitive issue which is best left to individuals to resolve.
Public legislation should not regulate private morality’.
Fighting a losing battle?
Most of the time the law is dynamic, yet it still cannot keep pace within this area, as
technology is ever advancing and developments occur quickly.
‘No matter what the law does, it will always be on the back foot in its attempt to confront
some of the difficult issues raised by this area of science and medicine’
1) Why might this be the case?
2) How, if at all, can this problem be solved?
The legislation
● The Human Fertilisation and Embryology Act 1990 - key piece of legislation that
governs this area.
○ Assisted reproduction.
○ Embryo research.
● The Human Fertilisation and Embryology Act 2008 - it does not replace that first
guiding piece of legislation.
○ Amending legislation.
○ Key features of the old model of regulation retained.
■ Part 1: Amendments to HFEA 1990.
■ Part 2: Provisions relating to parenting.
■ Part 3: Miscellaneous and general provisions.
, Comment: The Human Fertilisation and Embryology Acts of 1990 and 2008
● The Warnock Committee Report into Human Fertilisation and Embryology 1984 led
to the old HFEA 1990.
○ Considerable gap between report and publication of legislation. Its primary
concern was with experimentation being undertaken on embryos. Concern
about experimentation was born out of media hype and these stories
captured the imagination of the public. The government had to strike a
delicate balance, if there was a too heavy approach, it would stifle the
innovation and creativity needed to take this field forward, as this type of
research would have advantages for society.
○ Legislation is permissive, it seeks to provide an overarching framework where
medicine and law can exist in harmony.
● Consider the role of the law in this field:
○ To set standards?
○ To act as a deterrent?
○ To act as a watchdog over the disciplines of medicine and science?
● Is a hard-line approach to regulation the answer here?
● The law is permissive.
● The law provides a regulatory framework.
Criticisms
● Lack of philosophical direction.
○ Doesn’t delve into the ethics, and steps away from contentious issues.
However is the law there to deal with moral questions? Or just to regulate and
provide guidance?
● Key areas ignored.
● The law cannot keep pace.
● Fair criticisms?
● Morality and ethics v the law.
● A pragmatic approach.
The Human Fertilisation and Embryology Authority
● HFEA 1990, section 5.
○ The legislation delegates most of its power out to the human fertilisation and
embryology authority. They act as the watchdogs over fertility treatments and
research.
● Http://www.hfea.gov.uk.
● A powerful regulatory body?
● Power versus accountability.
● The HFE Authority Code of Practice – supplements the primary legislation.
● Powers:
○ Can invoke criminal sanctions.
○ Can enter premises.
○ Can seize equipment and materials.
○ Can revoke licences.
