Times of change?

Medical Law Review

Volumn 13, Issue 1, 2005, Pages 1-16

  Brazier, Margot ^a  

^a NONE

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EID: 27644599562     PISSN: 09670742     EISSN: None     Source Type: Journal    
DOI: 10.1093/medlaw/fwi001     Document Type: Editorial

References (97)

1. He was appointed to Chair the public inquiry into children's heart surgery at Bristol. See Learning from Bristol: The Report of the Public Inquiry into Children's Heart Surgery at the Bristol Royal Infirmary 1984-1995 (Cmnd. 2507(1) 2001). (Hereafter Learning from Bristol.)
2. 'Introduction' (1993) 1 Med. L. Rev.
3. The ambit of the Review is by no means limited to questions relating to the role of doctors. Retaining the adjective medical should not indicate any intent to exclude either reflection on the law as it affects other health professionals or the broader concepts of health law identified by Montgomery; J. Montgomery, Health Care Law (Oxford University Press 2002) at 1.
4. G. Williams, 'Controlling the Repetitive Dangerous Offender' (1993) 1 Med. L. Rev. 1-27.
5. For a sceptical account of judicial attitudes to autonomy see e.g. M. Jones, 'Informed Consent and Other Fairy Stories' (1999) 7 Med. L. Rev. 103.
6. See e.g. 'Competent Adult Patient's Right to Refuse Life-Sustaining Treatment' [AG] (2002) 10 Med. L. Rev. 201-4.
7. See e.g. M. Brazier and J. Miola, 'Bye-Bye Bolam: A Medical Litigation Revolution' (2000) 8 Med. L. Rev. 85-114
8. Lord Woolf, 'Are the Courts Excessively Deferential to the Medical Profession?' (2001) 9 Med. L. Rev. 1-17.
9. See e.g. R. Scott, 'Prenatal Screening, Autonomy and Resources: The Relationship between the Law of Abortion and Wrongful Birth' (2003) 11 Med. L. Rev. 265-325
10. S. Fovargue and J. Miola, 'Policing Pregnancy: Implications of the Attorney-General's Reference (No. 3 of 1994)' (1998) 6 Med. L. Rev. 265-96
11. S. Sheldon and S. Wilkinson, 'Hashmi and Whitaker: An Unjustifiable and Misguided Distinction' (2004) 12 Med. L. Rev. 137-64.
12. See M. Otlowski, 'Active Voluntary Euthanasia: Options for Reform' (1994) 2 Med. L. Rev. 161-205
13. J. de Haan, 'The New Dutch Law on Euthanasia' (2002) 10 Med. L. Rev. 57-75
14. M. Freeman, 'Denying Death its Dominion: Thoughts on the Pretty Case' (2002) 10 Med. L. Rev. 245-71
15. and see below S. Smith, 'Slippery Slopes' (2005) 13 Med. L. Rev. 17
16. M. Ford, 'The Personhood Paradox and the Right to Die' (2005) 13 Med. L. Rev. 8. I have not conducted a comprehensive analysis of articles published in the Review but issues relating to death seem to constitute the largest single topic for discussion.
17. See Expert Group of the CMO, Stem Cell Research: Medical Progress and Responsibility (2000);
18. and see A. Plomer, 'Beyond the HFE Act 1990: The Regulation of Stem Cell Research in the UK' (2002) 10 Med. L. Rev. 132-65.
19. Without any of the reflection exhibited in e.g. S. Pattison, 'Reproductive Cloning: Can Cloning Harm the Clone?' (2002) 10 Med. L. Rev. 295-307.
20. See Re Wyatt (A Child) (Medical Treatment: Parent's Consent) [2004] E.W.H.C. 2247
21. Re Winston-Jones (A Child) (Medical Treatment: Parent's Consent) [2004] All E.R. (D) 313.
22. In her own autobiography, Ms Blood bitterly criticised those academics and others who questioned her wish to have her husband's child. See Flesh and Blood: The Human Story Behind the Headlines (Mainstream 2004).
23. O. O'Neill, Autonomy and Trust in Bioethics (Cambridge University Press 2002) at 186.
24. Though O'Neill (ibid.) argues that the media have ethical responsibilities to present accurate and balanced accounts of such issues.
25. See Daily Mail 2.8.04.
26. See The Times 22.10.04
27. Sunday Times 27.10.04. News illustrated by photographs of the children in question.
28. Gillick v. West Norfolk and Wisbech A.H.A. [1986] A.C. 112, H.L.
29. See e.g. Daily Mail 5.12.03, with its reference to the 'captivating Rev. Joanna Jepson' - the 'pretty vicar'.
30. See M. Brazier, 'Retained Organs: Ethics and Humanity' (2002) 22 L.S. 550-69.
31. See Montgomery, above, n. 3 at 485-500.
32. See Law Commission Report No. 231 Mental Capacity (HMSO 1995) extensively debated in a dedicated edition of the Review (1994) 2 Med. L. Rev. 1-91.
33. In Scotland, the Adults with Incapacity (Scotland) Act 2000 introduced much needed reforms much more swiftly. See J.K. Mason, R.A. McCall Smith and G.T. Laurie, Law and Medical Ethics, 6th edn (Butterworths 2002) 323-5.
34. Sir Ian Kennedy's own example blazed a path beginning with his Reith lectures in 1981 and including reports on xenotransplantation on his route to the Bristol Inquiry and the Healthcare Commission.
35. See O'Neill, above, n. 14 at 165-84.
36. And see J. van Dyck, Manufacturing Babies and Public Consent: Debating the New Reproductive Technologies (Macmillan 1995).
37. Campbell v. M.G.N. News [2004] 2 All E.R. 995, H.L.
38. As in the case of Charlie Whitaker, see 'Don't Play God with our "Son"' Daily Mail 5.8.04.
39. See S. Sheldon and S. Wilkinson, above, n. 8.
40. See the accounts of Ruth Winston-Jones' efforts to compel doctors to continue treating her baby suffering from Edwards' Syndrome and her distress and fury when Luke died. See Sunday Telegrapb 14.11.04.
41. The coverage given by local media to parents and relatives who believed that organs had been retained from their deceased family member was instructive, and both influential and destructive.
42. Do the media obtain informed consent? What role is played by payments for exclusive access to stories?
43. See K. Barker, 'NHS Contracting: Shadows in the Law of Tort' (1995) 3 Med. L. Rev. 161-76
44. C. Newdick, 'Rights to NHS Resources after the 1990 Act' (1993) 1 Med. L. Rev. 53-82.
45. Lauded by the Secretary of State for Health; see J. Reid, 'We Can be Consumers and Citizens' Guardian 13.11.04.
46. The Care Standards Act 2000 first established a system of regulation and inspection for private healthcare providers. The National Care Standards Commission initially regulated the private sector. Now merged with the Commission for Social Care Inspection, the regulation of both the private and the public sector may well now be transferred to the Healthcare Commission: See The Times 26.10.04.
47. Frank Dobson (in)famously declared: 'The only place for a lawyer in the NHS is on the operating table', Guardian 30.4.98. For more guarded comments see Making Amends: A Consultation Paper Setting Out Proposals for Reforming the Approach to Clinical Negligence in the NHS (CMO 2003); http://www.doh.gov.uk/makingamends.
48. See Learning from Bristol, above, n. 1 at 367.
49. See M.A. Jones, Medical Negligence, 3rd edn (Sweet and Maxwell 2003).
50. See National Audit Office, Handling Clinical Negligence Claims in England (2001).
51. [2002] 3 All E.R. 305, H.L.
52. At 343.
53. [2003] Lloyd's Rep. Med. 105. But consider the rather different attitude displayed by the majority of their Lordships in Chester v. Afshar [2004] U.K.H.L. 41, discussed below at 103-7.
54. At p. 127.
55. See I. Kennedy, The Unmasking of Medicine (Allen and Unwin 1981).
56. So, Kennedy and Grubb affirm 'the common law - that glorious concept of English law - is, in its application to medical law, rich with, and informed by human rights notions'. See I. Kennedy and A. Grubb, Medical Law, 3rd edn (Butterworths 2000) at 3.
57. See M. Brazier and N. Glover, 'Does Medical Law have a Future?' in D Hayden (ed.), Law's Futures (Hart 2000) at 371-89.
58. For a contemporary review of the 1989 Act see D. Price and R. Mackay, 'The Trade in Human Organs' (1991) 141 N.L.J. 1272.
59. The seminal work of Titmuss continued to be influential; R. Titmuss, The Gift Relationship (Allen and Unwin 1971).
60. However, scepticism about the primacy of 'gift relationship' predates the Review. See e.g. J. Harris, The Value of Life (Routledge 1985) at 155.
61. For a more recent analysis of 'anti-market' policy-making, see M. Freeman, 'Does Surrogacy have a Future after Brazier?' (1999) 7 Med. L. Rev. 1-20.
62. See HFEA. Directions (Ref. D 1998/1);
63. and see M. Brazier, 'Can You Buy Children?' (1999) 11 C.F.L.Q. 345
64. A. Plomer and N. Martin-Clement, 'The Limits of Beneficence: Egg Donation under the Human Fertilisation and Embryology Act 1990' (1995) 15 Legal Studies 434.
65. See The Times 12.11.04. The EU Tissue Directive bans direct payments; hence the language of 'compensation' claimed by some newspapers to be contemplated to be £1,000 per egg donation.
66. 'The Case for Allowing Kidney Sales' (1998) 351 Lancet 165O.
67. Beverly Allitt was convicted of murdering four children in her ward and attempting to murder 13 others in 1991. Wendy Hesketh has commented 'The issue of professionals who commit crime is well documented in the press. Almost every other week there is a sensational article on the topic concerning crimes committed by health professionals against their patients'. See W. Hesketh, 'Medico Crime: Time for a Police-Professions Protocol?' (2003) 76 Police Journal 121.
68. Barbara Salisbury was gaoled for five years for attempting to murder two elderly patients. See Guardian 19.6.04.
69. Rodney Ledward and Richard Neale were both ultimately struck off the medical register for serious professional misconduct. The crucial issues (as opposed to the juicy scandal) are discussed in J. Burrows, 'Telling Tales and Saving Lives: The Role of Professional Colleagues in Protecting Patients from Dangerous Doctors' (2001) 9 Med. L. Rev. 110.
70. Clifford Ayling was gaoled for sexually abusing patients over a period of 30 years; see Independent 10.9.04.
71. And see Hesketh, above, n. 48.
72. See Learning from Bristol, above, n. 1.
73. Bristol Interim Inquiry Report, Removal and Retention of Human Material (2000); http://www.bristolinquiry.org.uk.
74. The Royal Liverpool Children's Inquiry Report (H.C. 12-11 2001).
75. For an excellent analysis of the issues raised by retention and use of human body parts, see D. Price, 'From Cosmos and Damian to van Velzen: The Human Tissue Saga Continues' (2003) 11 Med. L. Rev. 1-47.
76. See the Shipman Inquiry: First Report Volume I, Death Disguised (2002).
77. Graphically illustrated in November 2004 by demands from the mother of a baby who died after the court refused her application to require doctors to resuscitate him that the police investigate his death. See The Times 13.11.04.
78. The adverse effects of the 'blame culture' are well documented in Learning from Bristol, above, n. 1.
79. And see A. Merry and A. McCall Smith, Errors, Medicine and the Law (Cambridge University Press 2001);
80. R. Tallis, Hippocratic Oaths: Medicine and its Discontents (Atlantic Books 2004).
81. See below, D. Morrison, 'A Holistic Approach to Clinical and Research Decision-Making: Lessons from the UK Organ Retention Scandals' (2005) 13 Med. L. Rev. 45-79.
82. Consider the conduct of Jane Loveday, the solicitor acting for patients suing the gynaecologist Rodney Ledward (see n. 50 above). The claims collapsed amidst allegations that Ms Loveday had amassed £444,000 in legal aid fees and had acted at best with incredible incompetence if not 'fraud'. See Daily Telegraph 26.6.04.
83. See Learning from Bristol, above, n. 1 at 1.
84. Exemplified in the prosecutions of Dr Prentice and Dr Sulman, see R v. Prentice, R v. Adomako and R v. Holloway [1993] 4 All E.R. 557
85. and see generally, A. Merry and A. McCall Smith, above, n. 59.
86. See M. Childs, 'Medical Manslaughter and Corporate Liability' (1999) 19 L.S. 316-38.
87. Discussed in Montgomery, above, n. 3 at 135-7.
88. Sections 29 and 28(4).
89. See P. de Prez, 'Self-Regulation and Paragons of Virtue: The Case of "Fitness to Practice"' (2002) 10 Med. L. Rev. 28-56.
90. R v. Secretary of State for Social Services ex parte Hincks [1980] J.S.W.L. 113.
91. See Newdick, above, n. 31.
92. [2000] 1 W.L.R. 977, C.A.
93. R (on the application of Watts) v. Secretary of State for Health and Bedford Primary Care Trust [2003] E.W.H.C. 2228
94. and see R (on the application of Watts) v. Secretary of State for Health [2004] E.W.C.A. 166.
95. [2004] E.W.C.A. 641.
96. See K. Syrett, 'Nice Work? Rationing, Review and the "Legitimacy Problem" in the "New NHS"' (2002) 10 Med. L. Rev. 1-27.
97. See O'Neill, above, n. 14 at 138.