Typically anorexia nervosa is diagnosed as a condition of teenage girls where the rates of mortality and morbidity are very high and recovery rates very low. This chapter discusses the condition as experienced in Australia by older women who have either lived with anorexia during adolescence and as young women or who have been diagnosed later in life. The discussion traverses issues of consent to treatment or its refusal, capacity to provide consent, and the application of human right protections arising from various human rights instruments.
This article critically evaluates the Medicines and Healthcare products Regulatory Agency’s announcement, in March 2008, that GlaxoSmithKline would not face prosecution for deliberately withholding trial data, which revealed not only that Seroxat was ineffective at treating childhood depression but also that it increased the risk of suicidal behaviour in this patient group. The decision not to prosecute followed a four and a half year investigation and was taken on the grounds that the law at the relevant time was insufficiently clear. This article assesses the existence of significant gaps in the duty of candour which had been assumed to exist between drugs companies and the regulator, and reflects upon what this episode tells us about the robustness, or otherwise, of the UK’s regulation of medicines.
The notion of "consent" is frequently referred to as "informed consent" to emphasise the informational component of a valid consent. This article considers aspects of that informational component. One misuse of the language of informed consent is highlighted. Attention is then directed to some features of the situation in which consent would not have been offered had certain information been disclosed. It is argued that whether or not such consent is treated as sufficiently informed must, from a moral point of view, take account of four conditions. When these are applied to the operation of consent in relation to criminal responsibility for HIV transmission, the approach in some recent cases is shown to be morally questionable.
Since 1991, sperm donors in the UK have had the legal right to withdraw consent for the use of their sperm in fertility treatment. This has the potential to adversely affect patients. It may mean that previous recipients of a donor’s sperm cannot have further children who are full biological siblings to an existing child, and that embryos created from the donor’s sperm and a patient’s eggs must be destroyed. We have informally investigated withdrawal of consent by sperm donors donating after 1 April 2005, when lifelong anonymity for gamete donors ended.
Until 2008, if doctors followed the General Medical Council's (GMC's) guidance on providing information prior to obtaining a patient's consent to treatment, they would be going beyond what was technically required by the law. It was hoped that the common law would catch up with this guidance and encourage respect for patients' autonomy by facilitating informed decision-making. Regrettably, this has not occurred. For once, the law's inability to keep up with changing medical practice and standards is not the problem. The authors argue that while the common law has moved forward and started to recognise the importance of patient autonomy and informed decision-making, the GMC has taken a step back in their 2008 guidance on consent. Indeed, doctors are now required to tell their patients less than they were in 1998 when the last guidance was produced. This is an unfortunate development and the authors urge the GMC to revisit their guidance.
Farrell and Brazier set out the arguments for obtaining specific informed consent for allogeneic blood transfusion.1 They do not deal with allogeneic blood products, but I think their article can be assumed to cover this too. This subject is controversial, and the question of how to seek and record consent has been the subject of a recent consultation by the Department of Health’s Advisory Committee on the Safety of Blood, Tissues and Organs. A question Farrell and Brazier avoid is who should be responsible for gaining informed consent? Should it be those who provide the blood (the transfusion service, probably most informed about the risks) or those who prescribe it (probably least informed)? This is of crucial importance in the debate and has considerable resource implications.
Within transfusion medicine, the question of whether separate informed consent should be obtained from patients for blood transfusion has provoked considerable debate. There has long been support for such an approach in the United States.1 A BMJ editorial in 1997 made it clear that reform was on the professional agenda in the United Kingdom, despite the established position that obtaining general consent for medical treatment included consent for blood transfusion.2 At the time, however, professional consensus proved elusive because of concerns over a range of practical problems, including who should be responsible for obtaining such consent and in what circumstances it should be obtained.3 The issue has now been brought to the fore again, highlighted by the recent stakeholder consultation launched by the UK government’s independent Advisory Committee on the Safety of Blood, Tissue and Organs.
With the capacity of doctors to intervene in pregnancy increasing, the likelihood for conflicts between doctors and hospitals and pregnant women is also increasing. Yet our jurisprudence has failed to clarify the bounds of pregnant women’s autonomy. Indeed, this jurisprudence is marked by confusion, leaving courts in the dark as to how to resolve these conflicts. Therefore, it is useful to carefully enunciate the rights and interests at issue in forced medical care of pregnant women. This includes 1) the distinction between the right to refuse medical care of oneself and the lack of a right to refuse consent to necessary medical care of others, 2) the right not to be forced to rescue others, and 3) the nature of the exceptions to these rights. Careful delineation of these concepts reveals that forced medical care of pregnant women lacks justification when these principles are consistently applied.
A central tenet to much ethical argument within medical law is patient autonomy. Although we have seen a welcome move away from a system governed by largely unchecked paternalism, there is not universal agreement on the direction in which medical law should advance. Competing concerns for greater welfare and individual freedom, complicated by an overarching commitment to value-pluralism, make this a tricky area of policy-development. Furthermore, there are distinct understandings of, and justifications for, different conceptions of autonomy. In this paper, we argue that in response to these issues, there has been a failure by the courts properly to distinguish political concepts of liberty and moral concepts of autonomy.
The paper discusses the issue of family involvement in the process of obtaining consent to treatment. Legally, doctors have a duty to inform the patient, and the patient has a right to be informed before making a decision. In this context, however, there is no requirement to involve relatives or to take into account their interests or requests. Yet, findings from in-depth interviews with NHS general practitioners presented in the paper indicate that in reality relatives have a substantial impact on the process of informed consent. Their presence may lead the doctor to provide more information to the patient and help the patient better understand the information conveyed by the doctor. Ultimately, the relatives' involvement enhances the patient's ability to make an informed decision, even though in some cases – when the relative is dominant – this may have a negative impact on the channel of communication between doctor and patient. These findings reflect a relational approach to patien
This paper analyses elements of the legal process of consent to the donation of ‘spare’ embryos to research, including stem-cell research, and makes a recommendation intended to enhance the quality of that process, including on occasion by guarding against the invalidity of such consent. This is important in its own right and also so as to maximise the reproductive treatment options of couples engaged in in vitro fertilisation (IVF) treatment and to avoid possible harms to them. In Part 1, with reference to qualitative data from three UK IVF clinics, we explore the often delicate and contingent nature of what comes to be, for legal purposes, a ‘spare’ embryo. The way in which an embryo becomes ‘spare’, with its implications for the process of consent to donation to research, is not addressed in the relevant reports relating to or codes of practice governing the donation of embryos to research, which assume an unproblematic notion of the ‘spare’ embryo. Significantly, our analysis demon
A woman whose husband became a sperm donor without her knowledge is seeking to change the law (reported in BioNews 671). Her claim is that a husband's sperm constitutes a 'marital asset', over which a wife should have some legally enforcable rights. Currently, there is no legal requirement for a spouse to consent to her partner's sperm donation. But perhaps there should be? After all, marriage is usually understood to entail a degree of shared decision-making. And since begetting children - with one's spouse - is traditionally a primary reason for tying the knot, can it really be compatible with marital mores for husbands to conceive children with other people?
Both medical and legal commentators contend that there is little legal risk for administering life-sustaining treatment without consent. In this Article, I argue that this perception is inaccurate. First, it is based on an outdated data set, primarily damages cases from the 1990s. More recent plaintiffs have been comparatively more successful in establishing civil liability. Second, the published assessments focus on too-limited data set. Even if the reviewed cases were not outdated, a focus limited to civil liability would still be too narrow. Legal sanctions have also included licensure discipline and other administrative sanctions. In short, the legal risks of providing unwanted life-sustaining treatment are not as rare, meager, and inconsequential as often depicted. In fact, sanctions for administering unwanted treatment are significant and growing.
The landmark decision of Gillick v West Norfolk Area Health Authority was a victory for advocates of adolescent autonomy. It established a test by which the court could measure children's competence with a view to them authorising medical treatment. However, application of the test by clinicians reveals a number of ambiguities which are compounded by subsequent interpretation of Gillick in the law courts. What must be understood by minors in order for them to be deemed competent? At what point in the consent process should competence be assessed? Does competence confer on minors the authority to refuse as well as to accept medical treatment? These are questions which vex clinicians, minors and their families. A growing number of commentators favour application of parts of the Mental Capacity Act 2005 to minors. In this paper, the limitations of this approach are exposed and more radical reform is proposed.