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Preface
This book is designed to provide readers with coverage not only of medical law, but also
of the context, philosophical, social, and political, within which the law operates. It at-
tempts to take the ‘ethics’ part of a Medical Law and Ethics course as seriously as the
‘law’ part. Although there is therefore extensive reference to legal material, there is also
substantial reference to writings from non-legal perspectives. In this regard, I am all too
aware that I have been able to present, in some cases, only the merest outline of a rich
vein of material from non-legal disciplines. It would be absurd in a book of this length to
suggest that the reader can be provided with an in-depth guide to all that philosophers,
sociologists, or theologians, for example, might have to say about medicine. I hope,
however, that I have provided enough to excite the interest of the reader and at least to
indicate the variety of perspectives from which it is possible to view the subject. There
are ample further readings listed, both at the end of chapters and in the bibliography, for
readers to undertake their own studies.
With the use of various boxes in some chapters, I have sought to highlight feminist
and theological perspectives on particular questions. Readers of the book have com-
plained that this either gives undue prominence to these perspectives or sidelines them.
I intend neither, but merely to break up the text and to provide space in which readers
can think about what might, or might not, be an interesting viewpoint. It need hardly
be said that feminist perspectives are represented throughout the text and are not lim-
ited to points made in these boxes.
I have been fortunate to have the support of many colleagues and friends during the
writing of this book: Cressida Auckland, Alan Bogg, Shazia Choudhry, Charlotte Elves,
Charles Foster, Stephen Gilmore, Kate Greasley, Imogen Goold, George P. Smith,
Rachel Taylor, and Jesse Wall, to mention just a few. Emily Cunningham at Oxford
University Press has been an encouraging and supportive editor, and Jonathon Price has
done an excellent job on the proof-reading. I am grateful to Jacky Cheng for comments
on the book. Above all, I am thankful to my family: to my children, Laurel, Joanna, and
Darcy, who entertained me greatly when I was not writing, and who forcefully encour-
aged me to get to my computer and not bother them whenever there was something
more fun to do; and to my wife Kirsten, whose love and care are boundless.
Jonathan Herring
Oxford
October 2019
New to this edition
• Thoroughly updated to cover all the latest developments in the areas of medical negli-
gence; capacity and Gillick competence; medical decisions for children; reproduction;
end-of-life decisions; and reforms of abortion law and organ donation
• Discussion of recent legislation and guidance, including the Organ Donation
(Deemed Consent) Act 2019, Liberty Protection Safeguards and the Mental Capacity
(Amendment) Act 2019, and consideration of The United Nations Convention on the
Rights of Persons with Disabilities in relation to mental health
• Updated coverage of recent case law, including Bawa-Garba v The General Medical
Council & Ors, Darnley v Croydon Health Services NHS Trust, Khan v Meadows, ARB
v IVF Hammersmith, Raqeeb v Barts NHS Foundation Trust, and An NHS Trust v Y
Guide to the Book
Medical law is a highly topical and often contentious aspect of the law with many interest
groups voicing differing opinions on the legal provisions and regulation. Use the follow-
ing features which appear throughout this book to get to grips with the broad spectrum of
opinion and understand some of the key debates and tensions.
Key case features provide the key facts of the most KEKEY CASE R (Rogers) v Swindon NHS Prima
important cases providing relevant case extracts An Anne-Marie Rogers sought a judicial review of the decisi
from the judgment so that you can understand how with Herceptin (an unlicensed drug). She had breast c
she had a 25 per cent chance of remaining free from ca
the laws translate into judgments and understand chance of dying. Initial trials of Herceptin had suggeste
from which Ms Rogers suffered. Initially, she paid for t
the development of the law. she asked her PCT to fund it. The Trust’s policy was to
exceptional personal or clinical circumstances. It determ
viewpoints.
A view from above boxes reflect the beliefs from A VIEW FROM ABOVE
some of the different religious groups on the con- Religious views on contraception
tentious aspects, particularly on topics such as eu- Many religions have no objection to contracep
from the Roman Catholic Church, which has co
thanasia and abortion. of contraception. Pope Paul VI explained:
G dh i l di d t ll d h
A shock to the system features expose some inter- A SHOCK TO THE SYSTEM
esting aspects of medical law and the provision of
Two cases provide an interesting contrast to th
health care, many of which you may not know about. Dr Simon Bramhall branded his initials on pa
Look out for these boxes to discover an eye-opening argon gas coagulator.18 His exact motivation is
an exercise of power. He was charged with an a
account of issues in medical law. sentenced to a twelve-month community orde
Online Resources
• A complete bibliography
6 Confidentiality 273
8 Reproduction 412
6 Confidentiality 273
1 The legal basis of confidentiality 275
2 Breach of confidentiality 286
3 Justifying breach of confidence 289
4 The Data Protection Act 1998 300
5 Problem issues 302
6 Legal remedies in confidentiality cases 308
xx DETAILED CONTENTS
8 Reproduction 412
1 Infertility 413
2 The concept of reproductive autonomy 415
3 Criticisms of assisted reproduction 419
4 The different techniques 422
5 Regulation 424
6 Criticisms of the HFEA 430
DETAILED CONTENTS xxi
7 Access to treatment 432
8 Parentage 437
9 Gamete donation: anonymity 441
10 Payment for gamete donation 444
11 Surrogacy 445
12 Preimplantation genetic screening 451
13 Cloning 459
14 Embryo research 459
15 Genetic enhancement and eugenics 463
16 Conclusion 467
QUESTIONS 467
FURTHER READING 469
Key Case entries are identified with bold page references. Definite (The) or indefi-
nite (A or An) articles at the start of case names are ignored in the alphabetical
ordering e.g. A Local Authority see Local Authority (A).
A, Re (Capacity: Social Media and Internet AB v Leeds Teaching Hospital NHS Trust
Use: Best Interests) [2019] EWCOP [2004] EWHC 644 (QB); [2004] 3 FCR
2 . . . 162–3, 212 324 . . . 517
A and B v Health and Social Services Trust Aintree University Hospital v James [2013]
[2011] NICA 28 . . . 469 UKSC 67 . . . 181, 550, 565–6
xxiv Table of Cases