Faculty of Law and political sciences

Department of law
Master 01: Medical Law

Introduction to Medical Law (PART ONE)

Charles Foster :
Medical law is concerned with our bodies, and what happens to them during and after our lives. The core issues of
medical law — organ transplantation, abortion, withdrawal of treatment, euthanasia, confidentiality, research on
humans — affect us all. Medical Law: A Very Short Introduction explores different examples of these issues to
illustrate the key problems and principles of medical law. When things go wrong with our bodies, we want to know
what our rights are, and what governs the conduct of the clinicians into whose hands we put our lives and limbs.
Dealing with matters of life and death, it can therefore have a fundamental impact on medical practice.

1. Origins and legacies

‘Origins and legacies’ outlines the background of medical law. Until World War II the Hippocratic Oath had been
the law regulating the medical profession for two and a half millennia. The work of Mengele as part of the Nazi
regime proved that this set of ethics and form of self-regulation was not enough and this led to the Declaration of
Geneva, 1947, and the World Medical Association's international code of medical ethics, 1949. The burgeoning field
of academic medical law is then discussed and the complex relationship between medical law and medical ethics is
also considered.

2. The enforcement of medical law

‘The enforcement of medical law’ maps the journeys of health-care professionals when they are accused of doing
something wrong. Criminal proceedings may be brought against doctors when they commit a crime that comes under
criminal law — assault, fraud, murder, for instance. Civil claims for damages are more common based on
negligence claims or claims based on consuent or confidentiality. Disgrace and unemployment may be the result of
disciplinary and regulatory proceedings. Public law jurisdiction and the important connection with human rights
law is then considered along with the complex jurisdiction over patients lacking capacity. Finally, resolving medical
law disputes through multiple sets of proceedings is discussed.

3. Before birth
‘Before birth’ first considers the rights and obligations to reproduce. The law defends the right to reproduce and
there are few limitations on that right. The right not to be a parent outweighs the right to be one. The conflicting and
complex regulations that affect the rights and non-rights of the embryo/fetus/unborn child are then discussed, with the
results of cases highlighting the variable laws on abortion. The cloning debate is then examined. Human
reproductive cloning is unlawful almost everywhere, but the regulation of therapeutic cloning is more politically
controversial. Finally, the issue of savior siblings is considered.

4. Confidentiality and privacy

Should doctors disclose any of their patients' confidences? When is disclosure justified? Is disclosure ever mandatory?
Should there be an absolute rule of non- disclosure? If not, why not? ‘Confidentiality and privacy’ considers these
questions and shows that national and international codes of medical ethics acknowledge the undesirability of an
absolute rule. Why confidences should be respected, to whom the information should be confidential, and balancing
competing interests are all discussed. The cases where the duty of confidentiality must or may be breached are
studied and the confidentiality and privacy of children, and the dead are also reviewed.

5. Consent
‘Consent’ outlines the generally recognized principles of the law of consent. It considers what is a competent adult
and shows that once can demand omissions (refuse treatment), but not demand acts (insist on specific treatment). In
the cases of incompetent adults and children, how one decides how to make a decision on someone else's behalf, and
who does it, is discussed. The issues of when consent is not consent and ‘informed consent’ are then explained.
Finally the criminal, civil, and disciplinary consequences of failing to obtain the patient's consent are discussed.
Faculty of Law and political sciences
Department of law
Master 01: Medical Law

6. Clinical negligence
‘Clinical negligence’ discusses no-fault schemes and the elements of clinical negligence claims in tort. A claimant
must prove that the defendant owed him a duty of care, there has been a breach of that duty, the breach has caused
damage, and of a type recognized by the law of tort. The test for breach of duty is the Bolam test, which says that a
professional will be in breach of duty if what they have done would not be endorsed by any responsible body of
opinion in the relevant specialty. The ‘but-for’ causation rule, loss of chance, material contribution to injury and risk
of injury, consent cases, and hypothetical causation are explained.

7. Research on human subjects

‘Research on human subjects’ considers the Nuremberg Code (1947), which gave way to the World Medical
Association's Declaration of Helsinki (1964). The Declaration (last revised in 2008) has no legal force in itself, but has
had profound influence on national and international research ethics and law. It emphasizes the importance of
autonomy and informed consent, and insists that the subject's welfare outweighs the welfare of society or the march of
science. The various articles of the Declaration that are concerned with unknown risks, when research should stop,
children and incompetent adults, and payment for medical research volunteers are discussed. Finally, the role of
research ethics committees is reviewed

8. Resource allocation
There is an infinite amount of suffering in the world and there is a distinctly finite amount of resources to deal with it.
How do we decide who gets what? ‘Resource allocation’ considers these dilemmas, which are both moral and
political. Resource allocation involves discrimination and the law simply requires that discrimination to be transparent
and reasonable. Hospital funding committees have to take decisions about whom to treat and whom to deny. These
decisions are often based on value for money, which is measured in Quality Adjusted Life Years. The substantive law
is shaped by practical considerations — there simply is not enough funding to treat everyone.

9. The end of life

‘The end of life’ begins with the definition of death. In the UK and many other jurisdictions, the definition of death is
based on brain-stem death. The protocols to be followed in reaching the diagnosis of death are tightly controlled. At
the heart of much legal thinking about death and dying is the distinction between acts and omissions. The differences
between and issues involved with murder, euthanasia, and assisted suicide are discussed. Then the withholding and
withdrawing of life-sustaining treatment and the four common legal strategies in these cases — substituted judgement,
best interests, proxy decision-making, and advance directives (living wills) — are considered.

10. Organ donation and the ownership of body parts

‘Organ donation and the ownership of body parts’ shows that in many countries, body parts and the products of
bodies are regarded as property if that gives the ‘right answer’. The trading of body parts, commodification, and the
Council of Europe's Convention on Human Rights and Biomedicine (1997), which prohibits commercial dealings in
human body parts, are considered. The debate on organ donation is then outlined, including living donors, opt in and
opt out donation, and the issue of autonomy. Finally, intellectual property rights and the patentability of human
material are addressed and it is argued that the law of confidentiality, not of property, should be used when
considering the human body.

11. The future of medical law

‘The future of medical law’ shows that the field of medical law, although young, must evolve quickly to meet the
increasing demands of medicine, which is becoming more technical, evidence based, and protocol-driven. However,
Faculty of Law and political sciences
Department of law
Master 01: Medical Law
new problems will be variations of old problems; metaphysics cannot be removed from humans and so will need to
remain part of the law. Lawyers need to become more medically and philosophically literate. Good law presupposes a
good understanding both of the medical facts and of the philosophical repercussions. It is argued that a professional
medical judiciary is needed as there are some intellectually epic challenges ahead.