Introduction to Health Law

Despoina Vasilaki
d.vasilaki@qmul.ac.uk
Office: Room 115A/117A
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Office hours: Thursdays 2-3pm
On becoming expert in health law
• Expertise: OED definition: ‘(a) Expert opinion or knowledge, often
obtained through the action of submitting a matter to, and its
consideration by, experts; an expert's appraisal, valuation, or
report. (b) The quality or state of being expert; skill or expertness in a
particular branch of study or sport’
• Kinds of expertise? legal, medical, social care, lived, relational,
academic…
• Whilst the law may have to judge and juggle between these different
kinds of expertise, in reality, the greater weight accorded to particular
experts often creates a kind of implicit hierarchy (e.g. a consultant
psychiatrist vs. the mental health nurse)
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Boundaries of expertise?
• Boundaries of expertise?
• Judges may be authoritative about law, but are they always knowledgeable
about the law or how to manage the complex human context before them?
• Medics are experts in surgery, anaesthesia, but are they expert in their
patients’ lives, their experiences, and how best to care for them?
• People acquire lived experience of law, medicine and care as they negotiate
their way through life, but do they need support or advice along the way?
• Families may be expert in what their loved one might value, wish for, prefer,
but can they project what they see is best for them?
• Academics produce research about the strengths and weaknesses of different
legal approaches, but are they hamstrung by their disciplinary and chosen
theoretical boundaries?
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What is Health Law about?
• Health Law has been defined as concerned with the regulation of medical
treatments with a particular focus on the medical profession and on ethics as its
normative guide about the right action to take [e.g. Jackson 2019; critique:
Harrington 2016]
• Health Law at QMUL raises questions about the reductiveness of this approach:
(i) Focus on medical treatments: misses health-promoting measures and social
determinants of health
(ii) Focus on medical professionals: misses other legal actors, e.g. social care
workers, nurses, midwives, institutions, companies, housing, the environment,
society, and patients
(iii) Ethics as narrowly defined as ‘right conduct’: misses the range of value-based
practices (e.g. skills, orientation, etc.) that are essential to making law better at
doing and supporting right conduct
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How will we do Health Law?
• This module builds on conventional approaches to Health or Medical
Law but also addresses these concerns.
• The importance of a nuanced conceptual grounding.
• No set textbook. Instead we work as researchers with primary and secondary
sources on particular legal questions each week.
• A pluralist approach to different legal perspectives with a particular concern for
highlighting and addressing gaps in health law knowledge
• Higher-order critical evaluation of health law
• Interdisciplinarity as a way of enriching gaps in knowledge.
• Importance of ‘non-legal’ sources of knowledge – philosophy, stories of lived experience,
different approaches to interpreting and understanding the law
• This is one of the ways we can all participate in health law, working dialectically between
experiences of ill/health and the legal / ethical framings that shape those experiences.
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Introductions
• Take 10 mins to talk to your neighbour about
• the bits of law you like best so far as a student, what you hope to get out of
Health Law, and any anxieties you care to share about doing Health Law
• something you did this week that is not related to your legal studies
• Then we’ll go round the room, introduce yourselves and share
something of what you discussed

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Health Law: the syllabus
• Semester One Topics
• Autonomy & Treatment Refusal
• Capacity to Consent/Refuse
• Incapacity and ‘best interests’
• Informed consent and health
care participation
• Essay prep workshop
• Reading week
• Treating ‘Mental Disorder’
• Treating children
• Access to public healthcare
• Participation in disease
prevention
• Essay (4000) submission in
January
• Semester Two Topics
• Research: Medical and Embryo
• Donation: Live and Dead
• Essay workshop in March
• Reading week
• Reproduction: Contraception,
Abortion, and Collaborative
Kinship
• Dying: Euthanasia, assisted
suicide and withdrawal of
treatment
• Essay (6000) submission in May
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Next steps in Health Law: Building
expertise through reading and writing
• Getting the most out of your readings
• Coggon, J., & Miola, J. (2011). Autonomy, liberty, and medical decision-making. The
Cambridge Law Journal, 70(3), 523-547: a secondary legal source with a helpful critical
analysis of the meaning of autonomy in the context of medical decision-making
• The RC (2014) case: a primary legal and research source but not the highest authoritative
legal source on the question of permissibility of refusing a blood transfusion.
• Reading (‘slowly’ and repeatedly) for
(1)Substantive points of law (rules for authorizing treatment),
(2) Critical ideas and arguments (current/best/ideal desire autonomy; different treatment of
prisoners?)
(3) Methods of analysis (gaps in doctrine, ‘interesting’ asides e.g. does the judge say anything
interesting about minority religious beliefs?
(4) Examining your own intuitions (what are your intuitions about autonomy and the judgment?
How are they challenged by the conceptual argument and case law?)

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A note on referencing
• When you list references in your submitted work the usual practice is to put
them in alphabetical order. You can use your preferred citation method e.g.
OSCOLA or Harvard, just make sure it’s complete and consistent.
• I’m using the order listed, and the Harvard referencing style, for today’s
purposes.
• Jackson, Emily (2019) Medical Law: Texts, Cases, Materials (fifth edition) Oxford
University Press
• Harrington, John (2016) Towards a Rhetoric of Medical Law Routledge
• Gunaratnam, Yasmin (2013) Death and the Migrant: Bodies, Borders and Care
Bloomsbury
• Ewick and Silbey (1998) The Common Place of Law: Stories from Everyday Life
University of Chicago Press
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A note on practice in the Health Law
classroom – guiding principles
• Be tolerant and respectful of different voices and perspectives
• Ask questions – there is no such thing as a ‘stupid question’
• Adopt the principle of charity and believe the best of each other
• No-one left behind!

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After a break let’s watch a little health law
in action…
• The Aintree v James [2013] UKSC 67 decision as delivered by Baroness
Hale
• https://www.youtube.com/watch?v=uAwEA9XqvUY
• Who is the case about? What happened to them?
• What legal rules/tests are applied in coming to a decision?
• Is the doctrine of consent being applied or the doctrine of best interests?
• How are the rules applied? Why does this matter?
• Is the question of the patient’s best interests to be considered from the perspective of
the reasonable patient or from the perspective of the actual patient?
• Was it in the patient’s best interests to give him life-sustaining treatment such as cardio-
pulmonary resuscitation? Did this answer change over the course of James’
hospitalisation?

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