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Heritable human genome editing: correction, selection and treatment Med. Law. Rev. (IF 1.7) Pub Date : 2024-03-21 Rosamund Scott
Heritable human genome editing (HHGE) to correct a nuclear gene sequence that would result in a serious genetic condition in a future child is presented as ‘treatment’ in various ethics and policy materials, and as morally preferable to the ‘selection’ practice of preimplantation genetic testing (PGT), which is subject to the disability critique. However, whether HHGE is ‘treatment’ for a future child
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How should we decide how to treat the child: harm versus best interests in cases of disagreement Med. Law. Rev. (IF 1.7) Pub Date : 2023-12-05 David Archard, Emma Cave, Joe Brierley
Where parents seek treatment for their young child that healthcare professionals cannot agree to, the High Court can determine what is in the child’s best interests. Some activists and academics seek change to impose threshold criteria that would bolster the decision-making rights of parents and reduce deference to clinicians and the courts. We defend the best interests standard against arguments that
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Mortier v Belgium [2022] ECHR 764: Warning Signs for Assisted Dying Regulation? Med. Law. Rev. (IF 1.7) Pub Date : 2023-11-27 Chay M Burt
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The role of the right to life in respect of deaths caused by negligence in the healthcare context. Med. Law. Rev. (IF 1.7) Pub Date : 2023-11-25 Elizabeth Wicks
This article investigates the question of whether a death caused by negligence in the healthcare context is capable of violating the right to life under Article 2 of the European Convention on Human Rights. This provision imposes extensive positive obligations upon Contracting States, including an operational duty to take reasonable steps to save a life that they know, or ought to know, is at risk
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Accommodations of private and family life and non-traditional families: the limits of deference in cases of cross-border surrogacy before the European Court of Human Rights Med. Law. Rev. (IF 1.7) Pub Date : 2023-11-11 Lydia Bracken
The European Court of Human Rights (ECtHR) case law on cross-border surrogacy establishes that a ‘general and absolute impossibility’ of obtaining recognition of the relationship, legally established in another country, between a surrogate-born child and their intended parents will violate the child’s right to respect for private life. This approach requires States to accommodate familial bonds created
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The role of non-genetic parents in a surrogate-born child’s identity: an argument for removal of the genetic link requirement Med. Law. Rev. (IF 1.7) Pub Date : 2023-09-17 Lottie Park-Morton
For the court to grant a parental order recognising intended parents as legal parents of a surrogate-born child, the gametes of at least one of the intended parents must have been used to create the embryo, under section 54(1)(b) and section 54A(1)(b) Human Fertilisation and Embryology Act 2008. In the Law Commission and Scottish Law Commission’s consultation paper, there was a provisional proposal
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Looking back to look forward-the history of VAD laws in Australia and future law reform in the Australian territories. Med. Law. Rev. (IF 1.7) Pub Date : 2023-09-11 Kerstin Braun
Taking one's own life or attempting to do so has long been decriminalised in Australia. Aiding, counselling, or inciting another person to kill him or herself, however, remains a criminal offence. Yet, all six Australian States have now introduced laws allowing assistance in dying under certain circumstances. This article traces the recent history of Voluntary Assisted Dying (VAD) laws in Australia
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London Borough of Islington v EF [2022] EWHC 803 (FAM): falling through the great safety net of the inherent jurisdiction. Med. Law. Rev. (IF 1.7) Pub Date : 2023-08-25 Daniel Bedford,Philip Bremner
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Dobbs v Jackson Women's Health Organization (2022): consequences one year on. Med. Law. Rev. (IF 1.7) Pub Date : 2023-08-25 Emily Ottley,Karolina Szopa,Jamie Fletcher
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Jennings v Human Fertilisation and Embryology Authority [2022] EWHC 1619 (Fam): confirming the paradigm of inferred consent for posthumous conception. Med. Law. Rev. (IF 1.7) Pub Date : 2023-08-25 Alexander Tiseo
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Post-trial access to investigational drugs in India: addressing challenges in the regulatory framework Med. Law. Rev. (IF 1.7) Pub Date : 2023-08-24 Nidhi Mehrotra, Padmavati Manchikanti
Through the New Drugs and Clinical Trials Rules, 2019 (2019 Rules), India has developed the rules governing post-trial access (PTA) to new drugs or investigational new drugs. However, inconsistencies and interpretational challenges exist in the application of the 2019 Rules and the Indian Council of Medical Research Guidelines 2017. This conflation poses a real harm to the trial participants, specifically
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The appeal in Bell v Tavistock and beyond: where are we now with trans children's treatment for gender dysphoria? Med. Law. Rev. (IF 1.7) Pub Date : 2023-11-27 Kirsty L Moreton
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R v Foster: Exemplifying the urgency of the decriminalisation of abortion. Med. Law. Rev. (IF 1.7) Pub Date : 2023-11-27 Elizabeth Chloe Romanis
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Healthcare Services for Asylum-Seekers: Untangling the European Social Charter. Med. Law. Rev. (IF 1.7) Pub Date : 2023-07-06 Yana Litins'ka
Asylum-seekers, like any population, need healthcare services, yet national laws sometimes restrict access to such services. The European Social Charter (revised) protects the right to health and medical services. However, the Charter has a complex application, and its scope is limited concerning foreigners. This article analyses to what extent the provisions of the Charter on the right to health and
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Interpersonal influences on decision-making capacity: a content analysis of court judgments Med. Law. Rev. (IF 1.7) Pub Date : 2023-06-10 Kevin Ariyo, Nuala B Kane, Gareth S Owen, Alex Ruck Keene
For many purposes in England and Wales, the Court of Protection determines whether a person has or lacks capacity to make a decision, by applying the test within the Mental Capacity Act 2005. This test is regularly described as a cognitive test with cognitive processes discussed as internal characteristics. However, it is unclear how the courts have framed interpersonal influence as negatively impacting
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The frontiers of medical negligence and diagnosis: an interview-based analysis. Med. Law. Rev. (IF 1.7) Pub Date : 2023-11-27 Annie Mackley,Kathleen Liddell,Jeffrey M Skopek,Isabelle Le Gallez,Zoë Fritz
While errors in medical diagnosis are common and often litigated, the different dimensions of diagnosis-formation, communication, recording-have received much less legal attention. When the process of diagnosis is differentiated in this way, new and contentious legal questions emerge that challenge the appropriateness of the Bolam/Bolitho standard. To explore these challenges, we interviewed 31 solicitors
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The (mis)use of fetal viability as the determinant of non-criminal abortion in the Netherlands and England and Wales. Med. Law. Rev. (IF 1.7) Pub Date : 2023-11-27 Samantha Halliday,Elizabeth Chloe Romanis,Lien de Proost,E Joanne Verweij
Time plays a fundamental role in abortion regulation. In this article, we compare the regulatory frameworks in England and Wales and the Netherlands as examples of the centrality accorded to viability in the determination of the parameters of non-criminal abortion, demonstrating that the use of viability as a threshold renders the law uncertain. We assess the role played by the concept of viability
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Regulating non-invasive prenatal testing (NIPT) for fetal sex determination Med. Law. Rev. (IF 1.7) Pub Date : 2023-05-28 Michelle Taylor-Sands, Chanelle Warton, Hilary Bowman-Smart
Non-invasive prenatal testing (NIPT) can be used to determine the chromosomal sex of the fetus at an early stage in a pregnancy. The use of NIPT for fetal sex determination raises concerns about potential selective termination of pregnancy by prospective parents who desire a child of a particular sex. Although sex selection for medical reasons is generally accepted, non-medical sex selection (NMSS)
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Parsing human rights, promoting health equity: reflections on Colombia's response to Venezuelan migration. Med. Law. Rev. (IF 1.7) Pub Date : 2023-05-25 Stefano Angeleri,Thérèse Murphy
Over the last 7 years, a multidimensional crisis in Venezuela has resulted in massive emigration. Over 7 million have fled the country, with more than 2.4 million seeking to settle in Colombia. Of these, as of 2021, more than 1 million were undocumented, but the situation has started to change with the implementation of an ambitious migrant regularisation scheme. Regularisation promises access to comprehensive
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Artificial intelligence and clinical decision support: clinicians’ perspectives on trust, trustworthiness, and liability Med. Law. Rev. (IF 1.7) Pub Date : 2023-05-23 Caroline Jones, James Thornton, Jeremy C Wyatt
Artificial intelligence (AI) could revolutionise health care, potentially improving clinician decision making and patient safety, and reducing the impact of workforce shortages. However, policymakers and regulators have concerns over whether AI and clinical decision support systems (CDSSs) are trusted by stakeholders, and indeed whether they are worthy of trust. Yet, what is meant by trust and trustworthiness
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The Warnock report and partial ectogestation: retracing the past to step into the future Med. Law. Rev. (IF 1.7) Pub Date : 2023-05-05 Victoria Adkins
Partial ectogestation continues to move towards human clinical trials. This article draws upon the Report of the Committee of Inquiry into Human Fertilisation and Embryology (Warnock Report) to provide guidance as to what may need to be considered for the future regulation of this technology. While the Warnock Report dates back to 1984, its significance and legacy continue to influence the current
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The publication of impaired doctors’ identity by Australian and New Zealand tribunals: law, practice, and reform Med. Law. Rev. (IF 1.7) Pub Date : 2023-04-29 Owen M Bradfield, Marie M Bismark, Matthew J Spittal, Paula O’Brien
For doctors with mental health or substance use disorders, publication of their name and sensitive medical history in disciplinary decisions may adversely impact their health and may reinforce barriers to accessing early support and treatment. This article challenges the view that naming impaired doctors or disclosing the intimate details of their medical condition in disciplinary decisions always
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Intellectual property protection for traditional medical knowledge in China’s context: a round peg in a square hole? Med. Law. Rev. (IF 1.7) Pub Date : 2023-04-05 Nan Xia
This article is an examination of the extent to which traditional medical knowledge in China can be protected by intellectual property laws. The analysis begins by providing a global picture with regard to the historic origin of intellectual property, exploring the reasons why China does not have indigenous counterparts to the western system of intellectual property rights protecting its traditional
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The Health and Care Act 2022: inserting telemedicine into the Abortion Act 1967. Med. Law. Rev. (IF 1.7) Pub Date : 2023-02-27 Adelyn L M Wilson
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Mental capacity—why look for a paradigm shift? Med. Law. Rev. (IF 1.7) Pub Date : 2023-01-14 Alex Ruck Keene, Nuala B Kane, Scott Y H Kim, Gareth S Owen
Challenges to the legitimacy of mental capacity over the past 10 years have been spearheaded by the Committee on the Rights of Persons with Disabilities, the treaty body for the UN Convention on the Rights of Persons with Disabilities (CRPD). This challenge has been asserted to have produced a ‘paradigm shift’. In this article, we examine why that interpretation has had such limited traction in the
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Vaccination as an Equaliser? Evaluating COVID-19 Vaccine Prioritisation and Compensation Med. Law. Rev. (IF 1.7) Pub Date : 2022-12-09 Christian Günther, Lauren Tonti, Irene Domenici
This article assesses the equity of COVID-19 vaccination programmes in three jurisdictions that have historically taken different approaches to the institutionalisation of equity considerations. The Sars-Cov-2 pandemic has thrown into sharp relief persistent societal inequalities and has added novel dimensions to these problems. Certain groups have proved particularly vulnerable, both in terms of infection
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The legal determinants of health (in)justice Med. Law. Rev. (IF 1.7) Pub Date : 2022-12-09 John Coggon, Beth Kamunge-Kpodo
The mutual influences of social epidemiology and ideas of justice, each on the other, have been seminal in the development of public health ethics and law over the past two decades, and to the prominence that these fields give to health inequalities and the social—including commercial, political, and legal—determinants of health. General and political recognition of injustices in systematised health
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R (Gardner and Harris) v Secretary of State for Health and Social care and Others [2022] EWHC 967: Scant regard for Covid-19 risk to care homes. Med. Law. Rev. (IF 1.7) Pub Date : 2022-12-08 Victoria L Moore,Luke D Graham
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The social determinants of health, law, and urban development: using human rights to address structural health inequalities in our cities Med. Law. Rev. (IF 1.7) Pub Date : 2022-11-18 Lisa Montel
The COVID-19 pandemic exacerbated profound inequalities in the conditions in which people live, work, and age. Law plays a critical role in shaping these structural health inequalities, which have existed for decades. This dynamic can be observed at the local level, with cities operating as environments unequally distributing the risks of non-communicable diseases between population groups. This article
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Parental orders for deceased intended parents: Re X (Foreign Surrogacy: Death of Intended Parent) [2022] EWFC 34. Med. Law. Rev. (IF 1.7) Pub Date : 2022-12-08 Alan Brown,Katherine Wade
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Inequality by design: The politics behind forced migrants' access to healthcare. Med. Law. Rev. (IF 1.7) Pub Date : 2022-12-08 Mechthild Roos
When a system comes under strain, the persons most likely to suffer from the repercussions are those at and beyond its margins, as the age-old rule 'Help yourself before helping others' typically guides crisis management within the system. Similar behavioural patterns on the side of policy-makers have left a distinct mark on the healthcare rights of forced migrants in the context and aftermath of the
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B v University of Aberdeen [2020] CSIH 62: Where there's a will, there's a way. Med. Law. Rev. (IF 1.7) Pub Date : 2023-02-27 Alexander Tiseo
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When is the processing of data from medical implants lawful? The legal grounds for processing health-related personal data from ICT implantable medical devices for treatment purposes under EU data protection law. Med. Law. Rev. (IF 1.7) Pub Date : 2023-08-25 Sarita Lindstad,Kaspar Rosager Ludvigsen
Medicine is one of the biggest use cases for emerging information technologies. Data processing brings huge advantages but forces lawmakers and practitioners to balance between privacy, autonomy, accessibility, and functionality. ICT-connected Implantable Medical Devices plant themselves firmly between traditional medical equipment and software that processes health-related personal data, and these
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Should states restrict recipient choice amongst relevant and available COVID-19 vaccines? Med. Law. Rev. (IF 1.7) Pub Date : 2022-10-14 Emma Cave, Aisling McMahon
Several COVID-19 vaccinations have been authorised worldwide. Whilst some vaccines are contraindicated for certain age groups or health conditions, there are often multiple clinically suitable authorised vaccine brands available. Few states have allowed recipients to choose amongst them, though there are multiple reasons why choice would be valued. We consider the policy justifications for state controls
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Record linkage of routine and cohort data of children in Portugal: challenges and opportunities when using record linkage as a tool for scientific research Med. Law. Rev. (IF 1.7) Pub Date : 2022-10-14 Julia Nadine Doetsch, Vasco Dias, Inês Lopes, Regina Redinha, Henrique Barros
Linking records could serve as a useful tool for scientific research and as a facilitator for local policymaking. This article examines the challenges and opportunities for researchers to lawfully link routinely collected health and education data with cohort data of children when using it as a tool for scientific research in Portugal. Such linking can be lawfully conducted in Portugal if three requirements
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Plaintiff aims in medical negligence disputes: limitations of an adversarial system. Med. Law. Rev. (IF 1.7) Pub Date : 2023-05-25 Mary-Elizabeth Tumelty
The adversarial nature of medical negligence litigation is subject to frequent criticism by the media, patient advocates, and scholars. In Ireland, reform of the medical negligence dynamic is often mooted, particularly in response to the high financial costs of this type of litigation; however, change in this area has been slow. Recently, the Irish courts have dealt with a number of high-profile, medical
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The Voluntary Sterilisation Act: Best Interests, Caregivers, and Disability Rights. Med. Law. Rev. (IF 1.7) Pub Date : 2023-05-25 Hillary Chua
How can caregivers' interests be balanced with disability rights in decisions about whether to sterilise an intellectually disabled person? This question is considered in the context of Singapore, a commonwealth country that lacks a test case. Singapore has a lesser-known history of eugenics, and has struck an uneasy compromise between communitarian values and obligations under the United Nations Convention
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The Challenge of Bioinequality: Addressing the Health Impact of Unequal Treatment Through Law Med. Law. Rev. (IF 1.7) Pub Date : 2022-09-13 Isabel A Karpin, Karen O’Connell
Global social movements for justice have called for better legal responses to the harms of inequality. These inequalities have traditionally been dealt with in the political sphere and legal measures to address them have taken little account of emerging knowledge about the biological impact of unequal treatment. We use the concept ‘bioinequalities’ to foreground the relationship increasingly articulated
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SELF-ADMINISTRATION OR PRACTITIONER ADMINISTRATION? THE SCOPE OF FUTURE GERMAN ASSISTED DYING LEGISLATION. Med. Law. Rev. (IF 1.7) Pub Date : 2023-02-27 Kerstin Braun
In 2020, the German Federal Constitutional Court declared unconstitutional and void a 2015 criminal law penalising suicide assistance in a recurring fashion and called into existence a right to a self-determined death, including the use of suicide services, where available. Due to subsequent legislative inaction, no holistic assisted dying legislation offering protection for vulnerable individuals
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Relationships, Rights, and Responsibilities: (Re)viewing the NHS Constitution for the post-pandemic ‘new normal’ Med. Law. Rev. (IF 1.7) Pub Date : 2022-08-26 Caroline A B Redhead, Sara Fovargue, Lucy Frith, Anna Chiumento, Heather Draper, Paul B Baines
Action needs to be taken to map out the fairest way to meet the needs of all NHS stakeholders in the post-pandemic ‘new normal’. In this article, we review the NHS Constitution, looking at it from a relational perspective and suggesting that it offers a useful starting point for such a project, but that new ways of thinking are required to accommodate the significant changes the pandemic has made to
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The Scope of a Doctor's Duty of Care to Their Patient. Med. Law. Rev. (IF 1.7) Pub Date : 2022-12-08 Gemma Turton
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On gestation and Motherhood Med. Law. Rev. (IF 1.7) Pub Date : 2022-08-18 Zaina Mahmoud, Elizabeth Chloe Romanis
In English law, legal motherhood is allocated to the person who gestated. However, we argue that gestation—legally denoted as the “natural” source of parenting obligations—is often constructed as mothering, rather than the precursor to it. This means that women and pregnant people are treated as mothers prior to birth in legal and medical contexts. Since legal motherhood is an important status, defining
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The Requirement for Trans and Gender Diverse Youth to Seek Court Approval for the Commencement of Hormone Treatment: A Comparison of Australian Jurisprudence with the English Decision in Bell Med. Law. Rev. (IF 1.7) Pub Date : 2022-08-02 Malcolm K Smith
This article outlines the Australian legal position relevant to minors and the commencement of hormone treatment for Gender Dysphoria (GD). It traces the significant Australian legal developments in this field and compares the Australian jurisprudence with recent English caselaw. In Quincy Bell and Mrs A v The Tavistock and Portman NHS Foundation Trust and Ors, the English High Court held that minors
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Legal Determinants of Health Med. Law. Rev. (IF 1.7) Pub Date : 2022-08-02 Michael Thomson
Social determinants of health are the social and economic conditions that have a determining impact on health at an individual and population level. Working within this framework, in 2019 the O’Neill Institute for National and Global Health Law at Georgetown University and The Lancet published The legal determinants of health: Harnessing the power of law for global health and sustainable development
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‘This is no country for old (wo)men’? An examination of the approach taken to care home residents during the Covid-19 pandemic Med. Law. Rev. (IF 1.7) Pub Date : 2022-07-21 Clayton Ó Néill
This article discusses the human rights of residents in care homes in England who were affected by restrictions that were imposed during the first months of the COVID-19 pandemic in order to safeguard health and life at a time of public health emergency. It focuses on the potentially adversarial relationship between the need to protect the health of these residents and the possible adverse interferences
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Where does responsibility lie? Analysing legal and regulatory responses to flawed clinical decision support systems when patients suffer harm Med. Law. Rev. (IF 1.7) Pub Date : 2022-07-20 Megan Prictor
Clinical decision support systems (CDSSs) are digital healthcare information systems that apply algorithms to patient data to generate tailored recommendations. They are designed to support, but neither dictate nor execute, clinical decisions. CDSSs can introduce new risks, both by design features that heighten clinician burden and by outright errors that generate faulty recommendations for care. In
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Judicial Discomfort Over ‘Innovative’ Treatment for Adolescents with Gender Dysphoria Med. Law. Rev. (IF 1.7) Pub Date : 2022-07-13 Michelle M Taylor-Sands, Georgina Dimopoulos
Medical treatment for adolescents with gender dysphoria has attracted considerable attention in recent years, with continuing court involvement in Australia and recent judicial review proceedings in the UK. In Re Imogen [No 6], the Family Court of Australia held that an application to the Family Court is mandatory if a parent or a medical practitioner of an adolescent diagnosed with gender dysphoria
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An Emerging Pattern? A Further Case of Anticipated Capacity Loss in Pregnancy: North Middlesex University Hospital NHS Trust V SR [2021] EWCOP 58 Med. Law. Rev. (IF 1.7) Pub Date : 2022-06-25 Aimee V Hulme
In 2021, the Court of Protection made a third anticipatory declaration that it was lawful for a capacitous pregnant woman to be subject to possible forcible treatment contingent on her losing capacity before or during birth. North Middlesex University Hospital v SR raises three interesting questions for discussion which this commentary will explore. First, it is submitted that there is a growing, yet
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Fixed Buffer Zone Legislation: A Proportionate Response to Demonstrations Outside Abortion Clinics in England and Wales? Med. Law. Rev. (IF 1.7) Pub Date : 2022-06-24 Emily Ottley
There is concern that the recent increase in demonstrations outside abortion clinics in England and Wales may have a detrimental impact on clinic-users’ access to abortion services. Parliament could respond to this concern by passing legislation that implements fixed buffer zones around all clinics providing abortion services in England and Wales. This would make it an offence to engage in prohibited
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A fine balance: Best interests in the context of invasive treatment and autism: Manchester University NHS Foundation Trust v William Verden [2022] EWCOP 9. Med. Law. Rev. (IF 1.7) Pub Date : 2022-09-06 Mollie Cornell
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Is the Unequal Treatment of Maternal and Paternal Liability Under the Congenital Disabilities (Civil Liability) Act 1976 Justified? Med. Law. Rev. (IF 1.7) Pub Date : 2022-09-06 Catherine E Bowden
Under the Congenital Disabilities (Civil Liability) Act 1976 (CDCLA) a child born disabled as a result of an occurrence prior to its birth can bring a claim against the individual responsible for that occurrence. Significantly, mothers are exempt from liability (except in relation to negligent driving) but fathers are not. Since the CDCLA came into force in 1976, there have been significant shifts
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DNACPR Decisions: Aligning Law, Guidance, and Practice. Med. Law. Rev. (IF 1.7) Pub Date : 2022-09-06 Sabine Michalowski,Wayne Martin
Do not attempt cardiopulmonary resuscitation (DNACPR) decisions are a means to consider in advance the appropriateness of CPR measures if an acute crisis arises. During the COVID-19 pandemic, problems with such decisions, for example the putting in place of DNACPR decisions for all residents of certain care homes, received a lot of attention, prompting a Care Quality Commission (CQC) report with recommendations
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Monitoring Female Fertility Through 'Femtech': The Need for a Whole-System Approach to Regulation. Med. Law. Rev. (IF 1.7) Pub Date : 2022-09-06 Catriona McMillan
Concurrent with the rise of digital health and personal health tracking technologies, a market has also emerged of products targeted specifically at women: 'femtech'. This article is motivated by the concern that insufficient regulatory attention has been devoted to this growing market, and that extant ambiguity in the regulation of femtech leaves its users at risk of relying on technologies of as-yet
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Jo Bridgeman, Medical Treatment of Children and the Law—Beyond Parental Responsibilities Med. Law. Rev. (IF 1.7) Pub Date : 2022-04-28 Aoife Daly
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Imogen Goold, Cressida Auckland, and Jonathan Herring, Medical Decision-Making on Behalf of Young Children: A Comparative Perspective Med. Law. Rev. (IF 1.7) Pub Date : 2022-04-09 Emma Nottingham
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Duties of Candour in Healthcare: The Truth, the Whole Truth, and Nothing but the Truth? Med. Law. Rev. (IF 1.7) Pub Date : 2022-05-30 Oliver Quick
The creation of professional and statutory duties of candour has formalised the requirement for clinicians and healthcare organisations to be honest with patients and families when treatment has gone wrong. This article explains the background to creating both duties, analyses the concept of candour, the role of apologies, and considers evidence about compliance. It argues that making candour a statutory
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Guest Editorial Med. Law. Rev. (IF 1.7) Pub Date : 2022-02-23 Grubb A, Kennedy I.
Happy 30th birthday to the Medical Law Review. As the proud parents we have watched the journal prosper as we faded into the background. It has been so satisfying to see it go from strength to strength.
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Erratum to: Feats, Flops, and Free Lessons From NZ’s Response to the COVID-19 Pandemic Med. Law. Rev. (IF 1.7) Pub Date : 2022-02-15 Manning J.
Medical Law Review, Vol. 29, No. 3, pp. 468–496, https://doi.org/10.1093/medlaw/fwab025
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