Undue influence in the context of medical treatment

Medical Law International

Volumn 5, Issue 4, 2002, Pages 305-317

  Pattinson, Shaun D ^a  

^a Sheffield Inst Biotech Law/Ethics   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; BRISTOL; DIRECTIVE COUNSELING; GENETICS AND REPRODUCTION; HUMAN; INFORMED CONSENT; LEGAL APPROACH; LEGAL ASPECT; MALE; PATIENT ABANDONMENT; PERSUASIVE COMMUNICATION; POSTHUMOUS CONCEPTION; RE T (ADULT: REFUSAL OF MEDICAL TREATMENT); TREATMENT REFUSAL; UNITED KINGDOM;

BRISTOL; GENETICS AND REPRODUCTION; LEGAL APPROACH; RE T (ADULT: REFUSAL OF MEDICAL TREATMENT);

COERCION; DIRECTIVE COUNSELING; GREAT BRITAIN; HUMANS; INFORMED CONSENT; MALE; POSTHUMOUS CONCEPTION; REFUSAL TO TREAT; TREATMENT REFUSAL;

EID: 1442333601     PISSN: 09685332     EISSN: 20479441     Source Type: Journal    
DOI: 10.1177/096853320200500404     Document Type: Article

References (24)

1. [1992] 4 AllER 649.
2. [2002] EWCA Civ 565 (hereafter CA). This case was first heard by the President of the Family Division: Centre for Reproductive Medicine v U [2002] EWHC 36 (hereafter FD).
3. FD, para. 16; CA, para. 11.
4. FD, para. 13.
5. FD, para. 22.
6. CA, para. 21.
7. [2001] UKHL 44.
8. Allcard v Skinner [1887] LR 36 ChD 145, particularly Cotton LJ at 171-172.
9. Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 923.
10. CA, para. 20.
11. FD, para. 28.
12. The words of Butler-Sloss P, see FD, para. 22.
13. It makes sense to wait until the disparity in power has been removed before fighting one's ground.
14. It is, indeed, given as an example of such a relationship by a number of their lordships in Etridge, see, e.g., para. 18 (Lord Nicholls) and para. 157 (Lord Scott).
15. For a discussion of this point, see Andrew Grubb “Abortion” in Ian Kennedy and Andrew Grubb, eds., Principles of Medical Law, 609-649 (Oxford: Oxford University Press, 1998), para, 11.77. A conscientious objection to participating in abortion can be made, subject to conditions under s.4 of the Abortion Act 1967. Similarly, a conscientious objection to participating in any activity governed by the Human Fertilisation and Embryology Act 1990 can be made under s.38 of that Act.
16. CA, para. 23.
17. CA, para. 25.
18. CA, para. 26 (my emphasis).
19. S. 13(5). HFE Act. I have reservations about the meaningfulness of asking whether it is in a future child's best interests to be part of a programme that is a necessary condition for its existence: see Shaun D. Pattinson “Wrongful Life Actions as a Means of Regulating Use of Genetic and Reproductive Technologies.” (1999) 7 Health Law Journal19 and “Reproductive Cloning: Can Cloning Harm the Clone?” (2002) 10(3) Medical Law Review (forthcoming). For the purpose of this article, however, I will not question the statutory reliance on the meaningfulness of this task.
20. S.28(6)(b). This requirement is ethically questionable. If its purpose is to safeguard certainty with regard to inheritance, this could easily have been achieved by a more specific provision to the effect that any child conceived after death will not have a claim on the dead man's estate.
21. Human Fertilisation and Embryology Authority, Code of Practice, 2nd revision (London: HFEA, 2001), para. 3.15(a). The code also asserts that those seeking to consent to posthumous use of sperm must be informed that the HFE Act will render the resulting child legally fatherless (para. 7. 22). Although a failure to comply with the code does not, by itself, have legal consequences, the licensing authority is empowered to take account of such failures (sees. 25(6) HFE Act).
22. Statistic given in FD, para. 3.
23. [1997] 2 AllER 687.
24. This is a well-established principle of public law, see, e.g., the decision of the House of Lords in British Oxygen Minister of Technology [1971] AC 610. Surprisingly, this principle has yet to be argued in any case on the HFE Act. It would, e.g., have been an appropriate argument for counsel to advance in R v Ethical Committee of St Mary's Hospital Exp Harriott [1988] 1 FLR 512 andR v Sheffield Health Authority ex parte Seale (1994) 25 BMLR 1.