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University Degree: Medical Law
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The UK should completely deregulate embryo research and place no restrictions at all upon what scientists can do to early human embryos. Discuss.
This is supported by Helga Kuhse and Peter Singer1 who both believe that any reverence or special treatment towards early human embryos make little sense. Instead, as embryos do not possess the qualities which ground our respects for persons, such as consciousness and sentience, it can be argued that the UK should therefore deregulate embryo research and place no restrictions upon their use by scientists. Instead, both highlight that as non-human animals such as primates and rats can feel pain yet are often harmed by what is done to them in the course of scientific research, there exists a troubling anomaly whereby it is questionable why tests on totally non-sentient human embryos cannot be freely carried out.
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In our view, therefore, medical law is a subset of human rights law. (Kennedy & Grubb Medical Law (3rd ed.) Discuss.
European human rights also hold a similar view to English domestic law. In the case of Paton v UK9, a father sought an injunction to prevent an abortion being carried out by a pregnant woman on the grounds it would infringe the foetus's right to life. The case went to the European Commission of Human Rights who had to consider whether Article 2 of the ECHR applied which stated 'Everyone's right to life shall be protected by law.' The Commission noted the word 'Everyone' wasn't defined in the Convention but it did not include the unborn.10 Any interests the foetus may have were overridden by the pregnant woman's right to life and health.
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She applied for judicial review of the decision as it violated the promise which had been made. Upon hearing the case Lord Woolf MR remarked, '...no hesitation concluding that the decision to move Miss Coughlan against her will and in breach of the [H]ealth [A]uthority's own promise was in the circumstances unfair.'5 It was held that the Health Authority must uphold the initial promise made to Miss Coughlan regardless of the financial implications. Furthermore judicial review ensures that the reasoning applied in resource allocation decisions are clear and fair. This is demonstrated by the case of R. (Linda Gordon) v.
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It is S.13 (5) of the act which protects the welfare of future children, the discussion of whether the current law of assisted conception is under protective of future children will focus on this section and its practical use. The Abortion Act is rooted in a paternalistic attitude towards women, this was evidently an advantageous political strategy in 1967 (Jackson:2002:471),however, it's now increasingly recognized that 'to fail to respect the autonomy of competent people is to inflict harm on them that is just as morally unacceptable as direct harm'(Doyal:1998:1000).
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Between April 2009 and March 2010, 3,709 organ transplants were carried out successfully.7 Live donor transplants have also been steadily increasing every year. 8 Despite the number of lives saved, organ donation has long had a stormy history. Public response to transplantation has often been erratic, influenced by the publicity given to dramatic successes and failures, often emotively playing with society's views on this topic. Stories describing transplant surgeons as 'human vultures' and claims that organs were being removed from bodies before 'real death' exacerbated the situation.9 On the other hand, the media can be used as an effective tool
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Dead. Dead. For some death is the continuance of our journey to eternal life, paradise entered, for others it represents the imminent pause between life cycles which facilitates the souls search for an ultimate home, for others yet death is simply the end. Of everything. Forever. Regardless of the theological, moral, religious and deeply personal views that can be easily canvassed, death as a state is essentially a matter of law, medicine provides simply to determine if death's legal criteria has been met3 although in unison with the other common law countries, in the UK there is a complete
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Confidentiality in medical law (LLM). If a doctor believes that his patient presents a danger to others, he should be allowed to warn those who might be at risk. But he is not, and should never be, duty-bound to do so. Consider and discuss analytica
concept of patient confidentiality in order to report his findings to the authorities, or should he in fact be compelled to report his patient by virtue of statute? This essay will explore the concept of confidentiality within the patient physician relationship; ascertain when the patient is right to expect that his confidences will be met and the circumstances of any exceptions to the general rules. Using case law I will examine the ethical moral and legal position presented by the physician who finds himself in possession of patient information that may indicate a possible harm or danger to the health
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Maternal foetal conflict (LLM). Should a woman be able to refuse consent to treatment that will benefit her foetus or behave in ways that may harm her foetus? Discuss with reference to case law and commentary.
Lastly I will consider if it is desirable for our 21st century society to coerce women into medical procedures in order to ensure the safe birth of a healthy or, as is equally likely, a healthier baby. In the UK today, the contemporary pregnant woman enjoys regular meetings and consultation with a variety of health care professionals working within their own specialities to ensure a usually safe and uncomplicated gestational period culminating in an anticipated safe and healthy live birth.
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The concept of what is in the patient's best interests is determined in accordance with the 'bolam test'6; this test is an objective test which considers whether a responsible body in the same circumstances would presume the medical treatment as 'in the patient's best interest'. As Mimi is unconscious, so under the common law is said to be temporarily incompetent. In an emergency situation where a patient is temporarily incompetent, i.e. unconscious, a doctor or health care professional may treat the patient under the doctrine of necessity7.
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Euthanasia. Despite the fact that euthanasia is classified as a criminal act and law takes no account of the motive of the doctor, instances where doctors are charged and prosecuted for having performed active euthanasia upon a patient are few
Despite numerous attempts to legalize active voluntary euthanasia, e.g. the 2004 "Assisted Dying Bill"4, reform efforts have failed in the UK where the traditional belief remains that "I will give no deadly medicine to any one if asked, nor suggest any such counsel" ... The Hippocratic Oath.5 Statistics suggest that doctors in the UK are hardening their attitude towards euthanasia "just 2.6% of doctors said changing the law would benefit patients", however more than "80% of the people back the move". 6 Despite the fact that euthanasia is classified as a criminal act and law takes no account of the motive of the doctor, instances where doctors are charged and prosecuted for having performed active euthanasia upon a patient are few, e.g.
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Competent Adult Patients "Every human being of adult years and sound mind has a right to determine what shall be done with his own body..."3 This is the approach, which English courts adopt, "notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent"4. As noted above, this is evident in the situation where the competent adult patient is a Jehovah's Witness who refuses medical treatment to save their life. Butler-Sloss J has acknowledged that doctors who treat a Jehovah's Witness in such a way "do so at their peril".5 As Jones and Keywood rightly point
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For competent adults, the power to consent to treatment includes the right to refuse treatment. This right is premised on the right of each individual to autonomy and personal integrity. In the words of Justice Cardozo: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body". Hence, a competent adult has an absolute right to refuse medical treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death. The rules that apply to young people under 18 years of age are, however, quite different.
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Humans have the capacity to reflect their Creator in their intellect, self-consciousness, free will to choose, to love, to delight in, to relate to God and others to be a person. Other people may not have a strong belief in God but may still believe that 'life is sacred' in other words, special, to be preserved, to be treated as an intrinsic value. Generally, the 'life is sacred' stance upholds the notion of 'human life' as involved in and yet somehow independent of, the various circumstances of 'human lives'.
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Explain and analyse the changes made to abortion law by The Human Fertilisation and Embryology Act 1990
being born alive at 28 weeks or more with a "wilful act" unless it was done in 'good faith' under section 1(2) in keeping with the aforementioned sections 58 and 59 of the OAPA 1861 because, in such cases, both Acts applied2. However, problems were also raised regarding whether abortions should be allowed when the threat to the mother's health was mental, discussed in R v Bourne3, where the law was interpreted Justice Macnaghten to incorporate the 1929 Infant Life (Preservation)
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The term 'miscarriage' was used instead of abortion in this legislation and under section 58 of this act, every women who is intending to procure her own miscarriage should possess any poison or other noxious thing unlawfully, or shall use any other harmful substance with the like intent unlawfully, and if convicted thereof shall be liable to be kept in penal servitude for life.4 The section 59 of this act furthermore states that whoever supply or procure any poison or other harmful thing knowing that the same thing is intended to be used for the miscarriage of any women unlawfully,
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However, under the section 2(1) of the Suicide Act, 'A person who aids, abets, counsels or procures the suicide of another or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years'.2 Furthermore, the Medical Treatment (Prevention of Euthanasia) Bill was presented in the House of Commons on 15th of December 1999 which suggested a prohibition for the doctors to intentionally cause a death of the patient by withdrawing the medication.
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Within the context of professional ethics, observing the principle of confidentiality means keeping information given by or about an individual in the course of a professional relationship secure and secret from others. In Hunter v Mann
The Court balanced the public interest in freedom of the press against the public interest in maintaining hospital records confidential. The Court found that lack of publication of the information would be of minimal significance since there was a wide ranging public debate about AIDS generally. In balancing these competing interests it should be noted that disclosure should in any event only be made to a relevant party - there should be no blanket disclosure. Subsequently the scope of medical confidentiality was considered by the Court of Appeal in W v Egdell3.
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The claimant would need to show had she been made aware of the risk she would not have consented to the procedure (3). If the patient may have gone ahead and had the treatment anyway then it was said causation was not established (4). The courts may assume that even if the risks had been adequately disclosed then the claimant would still have had the treatment. Due to the difficulties in trying to deduce what the claimant might have done had the information been disclosed, the English courts apply a subjective test to cases like this, and ask would this particular claimant have acted in this way?
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The rule of double effect is a conceptually and psychologically complex doctrine that distinguishes between permissible and prohibited actions by relying heavily on the clinician's intent. More recently the doctrine has become has been seen as being relevant to the discussion of Medical Ethics and the legal implications of administering pain relief in terminally ill patients. Although higher than usual levels of pain relief can be tolerated by totally conscious and competent patients, opium derivates have a side effect of reducing breathing, thus hastening death.
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"Discuss the different interpretations of 'the Bolam test' (see Bolam v Friern Hospital Management Committee  2 All ER 118). Critically evaluate the impact of the Bolam test in relation to key cases, particularly with reference to the Bolitho case.
The difficulty in this area arises in respect of the standard of care required from a practitioner towards his NHS patients and on establishing causation. As far as medical malpractice and professional accountability is concerned the case of Bolam v Friern Hospital Management Committee2 is central. In this illustrious and redoubtable case, the plaintiff was a manic-depressive who was given electro-convulsive therapy. Most treatments include a range of side effects from minor to major; In Bolam's treatment reactions involved seizures which could cause fractures of the bones.
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"In establishing the standard of professional conduct that ought be reasonably adopted by doctors, common law does little more than articulate standards adopted by doctors themselves, it does not impose those of its own" Discuss
This statement could be taken as a contradiction to what LJ McNair stated above, it could be seen that doctors are articulating their own standards, because judges do not want to get involved. Difficulties The first difficulty in application of the Bolam Test arises when applied to junior doctors, who may lack expertise. In this case the courts have felt the need to follow the reasoning given in Nettleship v Weston  3ALL ER 581.Where a learner driver was held subject to the same standard to that of the reasonably competent driver.
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'The English courts only pretend to respect patient autonomy. In any difficult case, the judges prefer the doctors' judgement of the patient's best interests.' Discuss.
Here the patient must prove harm and can only recover damages which should have been reasonably foreseen.2 A health care worker (HCW) therefore, cannot proceed with a treatment without expressed or implied consent. Should a patient be unable to express their wishes for treatment, non voluntary treatment can take place; such as in an unconscious or incapacitated person.3 Non voluntary treatment of a minor by proxy consent is also lawful except in disagreement, if the minor is proven to be 'Gillick competent'.
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In order to make a successful claim in the tort of negligence, the patient must establish that the defendant owed them a duty of care.
The incompetent patient is in a different position. Treatment decisions for incompetent patients' are assessed by, what is in the 'best interests'; this test is determined by reference to the views of a responsible medical practice and uses the Bolam test6 Held in Re C (Refusal of Medical Treatment)7, 'If the patient's capacity was below that level, the doctors are under a duty to treat him in a way which their clinical judgment determines to be in his best interets'.8 The House of Lords said in Re F (Mental Patient: Sterilisation)9 'no one authorised by law can give consent on behalf of incompetent adults.'
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'The Hippocratic Oath' states that doctors must respect the confidences of their patients6 'The Declaration of Geneva' has a similar pledge. The justification for an infringement comes about when the reasons/ grounds for revealing the information outweigh those grounds for keeping it confidential. The legal justifications at common law are the following; a) It is for the benefit of society and in the public interest b) The patient has given permission for the disclosure to be made. Lord Goff in the case of AG v Guardian Newspapers (No.2)
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"The rights and interests of parties other than the patient should be better accounted for" Discuss, with reference to the law governing confidentiality and the treatment of incompetent patients.
An illustration of this is the case of Malette v. Shuhman2 where a young woman was rushed into hospital unconscious carrying a card stating that she was a Jehovah Witness refusing blood transfusions. The doctor in casualty then despite this proceeded to give the woman a blood transfusion and was thus held to have committed a battery as the woman did not consent to the treatment. This is a clear illustration of the idea that the patient's wishes must be adhered to and thus respect held for patient autonomy.
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