Human Rights and Healthcare

by Elizabeth Wicks

Overview

Human Rights and Healthcare looks at medical law from a human rights perspective. Almost all issues traditionally taught under a medical law label have significant human rights issues inherent within them. This book is unique in bringing those human rights implications to the fore. The rights at issue include established fundamental rights such as the right to life; the right to respect for a private life; and the right to physical integrity, as well as more controversial rights such as a right to reproduce and a right to die. The human rights perspective of this book enables new light to be cast upon familiar medico-legal cases and issues. As such the book provides a genuine merging of human rights law and medical law and will be of value to all students and academics studying medical law, as well as to those interested in the broader issues raised by the growing human rights culture within the UK and worldwide.

Product Details

ISBN-13:	9781841135809
Publisher:	Bloomsbury Academic
Publication date:	07/26/2007
Pages:	314
Product dimensions:	6.14(w) x 9.21(h) x 0.66(d)

About the Author

Dr Elizabeth Wicks is a Senior Lecturer in the School of Law at the University of Birmingham and a member of the Management Group of the University's Institute of Medical Law. She is the author of The Evolution of a Constitution: Eight Key Moments in British Constitutional Law (Hart, 2006) and has written on various aspects of medical law, public law and human rights.

Table of Contents

Table of Cases xi

Table of Legislation xvii

1 Introduction: Human Rights in Healthcare 1

I Sources of Human Rights Law 4

(a) International Human Rights Treaties 4

(b) The British Constitution and Common Law Rights 7

(c) The Human Rights Act 1998 9

II The Human Rights Relevant to Medical Law 12

(a) Privacy-related Rights 12

(b) The Right to Life 13

(c) The Right to Dignity 14

(d) Reproductive Autonomy 15

Recommended Further Reading 15

2 A Right to Treatment? The Allocation of Resources in the National Health Service 17

I Rights, Health and Resources 17

(a) Rights to Healthcare 17

(b) The Ministerial Duty to Promote a Comprehensive and Free Health Service 20

(c) Ethical Issues in Resource Allocation 23

II The General Rule: No Right to Treatment 27

III Procedural Aspects of a Right to Treatment 29

(a) The Equality Principle 29

(b) Procedural Propriety 30

IV A Right to Basic Life-Sustaining Treatment? 33

V Conclusion 36

Recommended Further Reading 36

3 Ensurig Quality Healthcare: An Issue of Right or Duties? 37

I The Doctor-Patient Relationship 37

II The Legal Requirements of Negligence 39

(a) Establishing a Duty of Care 39

(b) Proving that the Doctor has Breached his Duty of Care 41

(c) The Final Hurdle: Did the Breach Cause the Harm? 47

(d) Negligence: Conclusion 53

III Non-fault Compensation: Escaping the Blame Culture 53

IV Conclusion 56

Recommended further reading 57

4 Autonomy and Consent to Medical Treatment 59

I Autonomy, Consent and Choices 59

(a) Autonomy: The Ethical Principle 59

(b) Autonomy: The Legal Principle 61

II The Nature of Consent 65

(a) To what can we consent?65

(b) How do we consent? 68

III Comptent Consent 72

(a) Assessing Capacity 72

(b) The Capacity Test in Practice 75

IV Informed Consent 79

(a) The Meaning of Informed Consent 79

(b) The Legal Consequences of a Failure to Inform of Risks 80

(c) The Doctor's Standard of Care 82

(d) Causation of Harm 87

V Conclusion 89

Recommended Further Reading 90

5 Treating Incompetent Patients: Beneficence, Welfare and Rights 91

I The Principle of Beneficence and Conflicting Rights 91

II The Best Interests Test 94

(a) Medical Best Interests 94

(b) Broader Social Interests 98

(c) The Interests of Others 100

(d) Best Interests on a Statutory Footing 104

III Who Decides? 106

(a) Decision-making under the MCA 106

(b) Conflict Between Parents and Doctors 108

(c) Conflicts between Mature Minors and Parents or Doctors 111

IV Conclusion 116

Recommended Further Reading 117

6 Medical Confidentiality And the Right To Privacy 119

I Rights to Privacy and Confidentiality in the Medical Context 119

(a) The Concept of a Right to Privacy 119

(b) The Protection of Privacy in English Law 121

(c) Confidentiality and Privacy in the Medical Context 124

II Exceptions to the Duty of Confidentiality: Balancing Privacy Against Other Public Interests 126

(a) Disclosure with Consent 126

(b) Public Safety 128

(c) Freedom of the Press 128

(d) Parental Responsibility 131

(e) Anonymised Data for Research and Other Purposes 134

III Conclusion 136

Recommended Further Reading 137

7 Property Rights in the Body 139

I The Theory of Self-Ownership and the Role of Rights 139

II Property Rights in Human Material taken from Living Persons 143

III Property Rights and Dead Bodies 147

(a) The No Property Rule and Its Exceptions 147

(b) Organ Retention Scandals 150

(c) The Human Tissue Act 2004 154

(d) Shortage of Organs for Transplant 155

IV Conclusion 157

Recommended further reading 157

8 Medically Assisted Conception and a Right to Reproduce? 159

I The Origins of a Right to Reproduce 160

II Access to Treatment: A Right to Produce in Practice? 164

(a) Conflicting Interests I: Welfare of the Child 165

(b) Conflicting Interests II: Consent of Gamete Donors 167

(c) Conflicting Interests III: Parties to a Surrogacy Arrangement 170

(a) Conflicting Interests IV: Interests of Society 173

III Assigning Parentage: Giving Legal Recognition to the Right to Reproduce? 173

(a) Identifying the Mother 174

(b) Identifying the Father 175

IV A Right to Reproduce a Healthy Child? Selection of Embryos 177

V Conclusion 178

Recommended Further Reading 179

9 Termination of Pregnancy: A Conflict of Rights 181

I The Fetus 181

(a) A Right of Life for the Fetus? 181

(b) The Ethical Background to the Right to Life Debate 184

(c) The Fetus in English Law 187

II The Mother 190

(a) A Right to Choose for the Mother? 190

(b) The Mother's Rights in English Law 192

III The Father 197

IV The Medical Professionals 199

V Conclusion 201

Recommended Further Reading 202

10 Pregnancy and Freedom of Choice 203

I Refusal of Medical Treatment During Pregnancy 203

(a) Freedom of Choice and the Pregnant Woman 203

(b) Competency during Pregnancy 208

II Preventing Pre-natal Harm 212

(a) Harming the Fetus 212

(b) Harming the Future Child 214

III Wrongful Conception and Birth: Financial Recompense for an Unwanted Pregnancy? 218

(a) The Nature of Wrongful Conception and Wrongful Birth Claims 219

(b) Is a Child Always a Blessing? Reasons for Denying Compensation for an Unwanted Pregnancy 220

(c) The Post-McFarlane Fudge 223

IV Conclusion 224

Recommended Further Reading 225

11 The Right to Life at the End of Life 227

I The Right to Life in Context 227

(a) The Right of Life in Article 2 ECHR 227

(b) The Boundaries of the Right of Life: Defining Death 229

(c) The Sanctity of Human Life 231

II The Bland Principles 233

(a) Was Bland still alive? 234

(b) Bland's Best Interests 235

(c) Is Artificial Feeding a Form of Medical Treatment? 238

(d) Is Withdrawing Treatment an Act or an Omission (and does it matter)? 239

(e) Conclusion: The Bland Principles 242

III The Bland Principles in Practice 242

(a) The Beginning of a Slippery Slope? 242

(b) Duty to Provide ANH to Competent Patients 244

(c) The Bland Principles in a Human Rights Age 245

IV Equal Rights to Life: The Conjoined Twins Case 248

Conclusion 251

Recommended Further Reading 251

12 The Law and Ethics of Assisted Dying: Is There a Right to Die? 253

I The Criminal Law Prohibition on Assisted Dying 253

II Life and Death: A Right to Die as a Corollary of a Right to Life? 259

III A Right to Die with Dignity? 261

IV Autonomy, Private Life and Death 264

(a) The Right to Respect for Private Decisions about Dying 264

(b) Proportionate State Interference: Protecting the Rights of the Vulnerable 265

V Discrimination of the Disabled: Suicide versus Assisted Suicide 271

VI Conclusion 272

Recommended Further Reading 274

Bibliography 275

Index 283

Editorial Reviews

"...broad-ranging and carefully written...those familiar with healthcare and bioethics issues within the United States or elsewhere will find it an extremely useful comparative resource." --Law and Politics Book Review, Vol. 18 No.5

"...the book makes a good - and in many ways an excellent - course companion.What is attractive about it is Wicks' clear and accessible writing style, her careful structuring of arguments and her interesting - but never overwhelming - selections of further reading. It gives students a sound basis from which to explore the subject further and reach out beyond the legal debates to more traditional ethical writings. For these reasons, Human Rights and Healthcare deserves to acquire a firm place in medical law teaching." --Human Rights Law Review, Vol 9, No 1

"The style of the discussion is excellent and a pleasure to read; well-written, fluent and easily digestible. Complex matters are summarized succinctly, along with extracts from the leading commentaries and judgments, together with references to a broad range of materials. Wicks' willingness to question illuminates the ethical and practical difficulties the subject provokes." --European Public Law, 14:3

"...especially valuable to those students, teachers and practitioners who seek to comprehend a number of the central topics in English medical jurisprudence through the prism of human rights principles...it not only provides a fresh perspective on topics which sit at the centre of the medical law syllabus, but also offers an accessible entry point for those operating within other sub-disciplines-notably public law-who wish to develop a better understanding of fundamental medico-legal questions and the ethical debates which underpin them...The great strength of this text undoubtedly lies in its careful and comprehensive discussion of the often complex case law, with comparative illustrations offered where appropriate and revealing...Dr Wicks has produced a thoughtful, closely argued and highly readable exploration of an interface between two domains of law which seems certain to remain of profound significance both in the courtroom and the classroom in future years." --Public Law

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