MEDICINE AND THE LAW
Term 2
TUTOR: FERNNE BRENNAN, 3808,
joash@essex.ac.uk , office hours MONDAY AND TUESDAY 10-11
Seminars 11-17
Genetic information and the law
Research and the law (I)
Research and the law (II)
Beginning of life and the law
End of life and the law
Euthanasia
Revision of seminars 11-16.
Recommended textbook
J. K. Mason and R. A. McCall Smith, Law and Medical Ethics (London, Butterworths, 1999).
S E M I N A R S E R I E S
SEMINAR 11: GENETIC INFORMATION AND THE LAW
This seminar will introduce students to the issues raised with access to and use of genetic information. Central questions will focus on why genetic information may be useful? Who has an interest in the information? How the law protects the various interests?
1. What is genetic information?
2. Why would an individual or family have an interest in genetic information? Should individuals and family members have the right to know?
3. Do insurance companies; employers or the State have an interest in genetic information? What problems does this present?
4. How might the question of discrimination arise in relation to genetic information?
5. Answer the questions below
Freda applies for a job as a plumber to 'Loos and Co Ltd'. She reveals on her application form that she has a disability, namely a crumbling spine disease. In all other respects she is fit and well and has excellent credentials. Loos and Co Ltd consult you as to their legal liability if they refuse to employ her on the grounds of her disability. Using the Disability Discrimination Act 1995 can they refuse to appoint her?
Dr Letknow has information that one of his patients, Au Tonomy, has a communicable disease. Au Tonomy does not want this information disclosed to anyone. She fears the stigma, resentment from her family and that she might lose her job as a dentist. To what extent, if any, is Dr Letknow justified in ignoring the duty of patient confidentiality?
SEMINAR NOTES
READING: MASON & MCCALL SMITH, PP.167-184 & 191-213.
SS.5, 6 DISABILITY DISCRIMINATION ACT 1995.
R. J. Townshend-Smith, Discrimination Law, (London, Cavendish, 1998) pp.583-608.
SEMINAR
12: RESEARCH AND THE LAW (I)
These seminars will introduce students to the issues raised in biomedical experimentation using human subjects. Central questions will focus on the balance to be struck between the interests of medical advancement, the right of self-determination of the individual and the doctor's ethical position. What legal instruments govern human experimentation, and to what extent are they effective?
1. What is the distinction between research and experimentation?
2. What risks are involved in research and what are the regulations?
3. Reading Yuen Kun-Yeu v A-G for Hong Kong [1988] AC 175, {1987 2 All ER, do the courts provide effective protection for the research subject?
4. What issues have arisen with the following research subjects:
Volunteers; students; prisoners; the incompetent?
5. Dr Herbal is a great believer in the power of the mind to deal with human disease. Wherever possible she discourages her patients from relying on chemical prescriptions. Dr Herbal attended a medical conference in Old Newland, where the prevailing view for the treatment of men with pre-cancerous cells cancer was that, provided it would not spread, this condition was best left untreated. Dr Herbal's patient, Mr Content, is told that he does not need treatment to rid him of his pre-cancerous cells. Dr Herbal claims that she has it on good authority that the best treatment is mind over matter. Mr Content agrees on the basis that doctors know best. Advise Dr Herbal whether she has observed the requirements of informed consent. Suppose Mr Content developed prostrate cancer, would he have a right to compensation?
READING: MASON AND MCCALL SMITH. PP.451-470.
ROYAL COLLEGE OF PHYSICIANS OF LONDON RESEARCH INVOLVING PATIENTS (1990).
MEDICAL RESEARCH COUNCIL RESPONSIBILITY IN INVESTIGATIONS ON HUMAN PARTICIPANTS AND MATERIAL AND PERSONAL INFORMATION (1992).
COUNCIL OF EUROPE'S CONVENTION ON HUMAN RIGHTS AND BIOMEDICINE (1997)
Yuen Kun-Yeu v A-G for Hong Kong [1988] AC 175.
R v Ethical Committee of St Mary's Hospital (Manchester), ex parte H [1998] 1 FLR 512.
Bolam v Friern Hospital Management Committee [1957] 2 All ER 118.
Sidaway v Board of Governors of Bethlehem Hospital and the Maudsley Hospital [1984] QB.
SEMINAR 13:
RESEARCH AND THE LAW (II)
1. What are the justifications and problems of non-therapeutic research on children?
2. What principles might govern this area?
3. Read the following cases Gillick v West Norflok and Wisbech Area Health Authority [1986] AC 112; Re R ( a minor) (wardship: medical treatment) [1991] 4 All ER 177; Re W (a minor) (medical treatment) [1992] 4 All ER 627 and answer the following problem question:
Elizabeth (13 years of age) has a degenerative disease and is unlikely to survive her 14th birthday. Her consultant has come across an experimental drug that might give her a longer chance of survival, but the success rate is unknown. Elizabeth consents to the treatment but her parents refuse on the basis that they do not want her to suffer any longer. Advise Elizabeth as to her right to have her wishes taken in to consideration. On what grounds can the doctor ignore the parents' wishes?
4. Is there a distinction between a fetus and a pre-viable fetus?
5. Is there such a thing as fetal rights? If so, how are those rights reflected in the law?
6. Is research on the dead fetus and fetal material unethical? What is the legal regime and how useful?
SEMINAR NOTES click here
READING: MASON AND MCCALL SMITH, PP. 471-484
J. MONTGOMERY, HEALTH CARE LAW (LONDON, OUP, 1997), PP.345-349 (ESP. CASES IN FOOTNOTES).
SEMINAR
14: BEGINNING OF LIFE AND THE LAW
These Seminars will give students the opportunity to consider the moral and ethical justifications for selective treatment and the law. Consideration will be given to the role of resource rationing in the decision not to treat patients.
1. What is the concept of medical futility?
2. Reading R v Arthur; Re B; Re J; Re J; Re C; Re C (a minor); Re D; Re T; Under what conditions can a doctor lawfully terminate the life of a child? Does this conflict with the duty to preserve life?
3. Why is there a need for legislation?
4. Case Study - Re Conjoined Twins.
Read this case and answer the problem question below.
Mary and Joseph are Jehovah Witnesses. They have infant twins Luke and Mark, who have developed Meningitis, both will die unless they are treated. The treatment will involve a blood transfusion, which the parents will not consent to because of their religious belief. The doctors have sufficient resources to treat both children but only one twin, Luke, will survive as a result of the treatment.
a) Can the doctors ignore the parents wishes?
b)On what grounds can the doctors treat Luke and not Mark?
c) Suppose Luke is treated and dies shortly afterwards, do the parents have any comeback? Should they?
d) Is there a resource issue here, can that be taken account of by the doctors/courts?
e) Who should make these life and death decisions? Is the court a suitable forum? What are the possible alternatives?
SEMINAR NOTES click here
READING: MASON AND MCCALL SMITH, PP.363-392.
R v Arthur (1981) 12 BMLR 1. Re B (a minor) (1981) [1990] 3 All ER 927. Re J (wardship: medical treatment) [1990] 3 All ER 930. Re J (a minor) (medical treatment). Re C (a baby) [1996] 2 FLR 43. Re C (a minor) (1997) 40 BMLR 31. Re D (1997) 41 BMLR 81. Re T [1997] 1 All ER 906. R v Cambridge Health authority, ex p B (1995) 25 BMLR 5; rvsd (1995) 23 BMLR 1,CA. In re A (Minors) (Conjoined twins; Medical Treatment) CA September
2000.
SEMINAR
15: END OF LIFE AND THE LAW
In this seminar students will consider the issue of 'medical futility' in relation to adults. It has been argued that 'medical futility' in later life does not raise the question of euthanasia because it does not involve an external agency of death. It is about whether, and how, the patient should be allowed to die. We will therefore examine the issue of permanent vegetative state (PVS) separately from euthanasia.
1. What is PVS and are there any difficulties with this concept?
2. Reading Bland do you think that the courts went too far in allowing the doctors to withdraw treatment?
3. Consider the following problem:
Jack, Eddie, Mary and Jill are residents of an elderly people's home. They have been poisoned by Carbon Monoxide fumes that escaped from faulty gas fires in their rooms. They have all survived and been hospitalised. The hospital consultant has had an opportunity to examine and produce a report on each resident. Jack is in a PVS Eddie is likely to be in apparent PVS for some time and his gastronomy tube has become detached. Mary has severe brain damage but she is not in PVS. Jill also has brain damage and is likely to recover but her quality and length of life is likely to be poor, she has relatives who want her to be kept alive.
Using case law what decisions can the consultant rely on in recommending that all medical treatment should be withdrawn?
4. Why does Mason and McCall Smith doubt the 'best interests' test in relation to PVS? What do they offer as a better approach? Do you agree with them? Why?
READING: Mason and McCall Smith, pp.393-412.
Airedale NHS Trust v Bland [1993] 1 All ER 821.
SEMINAR
16: EUTHANASIA
1. What is the definition of euthanasia?
2. Sandra is terminally ill with breast cancer. She is in a lot of pain and wishes to die rather than go through a painful death. Can she lawfully kill herself? Can her husband assist her to die? Can her physician kill her? Diane Pretty's case
3. What is the difference between providing a person with the means to kill themselves, administering a drug to them that hastens their death and withdrawing medical treatment from a person which hastens death? Should the law make any distinction between these types of conduct if they lead to the same result - the early termination of adult life?
4. "The correct approach is for the court to judge the quality of life [the patient] would have to endure if given the treatment and decide whether in all the circumstances such a life would be so afflicted as to be intolerable…" per President, Sir Stephen Browne, Re R (1990) 6 BMLR 25 at 42. Critically assess this statement.
Seminar notes click here
READING MASON AND MCCALL, pp. SMITH 413-448.
SEMINAR 17: REVISION
This seminar will give students the opportunity to consider issues raised in seminars 11 -16 and to discuss revision and exam technique.
GENETICS
RESEARCH
TERMINATION OF LIFE
EUTHANASIA