McCulloch v Forth Valley Health Board concerned an allegation of negligence, in failing to consider treating pericarditis with non‐steroidal anti‐inflammatory drugs as a reasonable alternative treatment and not discussing this option with the patient. Montgomery v Lanarkshire Health Board held that a medical professional must disclose to a patient material risks and any reasonable alternative treatments. The materiality of a risk is to be decided by reference to a reasonable person in the patient's position, or where the medical professional should be reasonably aware that the particular patient is likely to attach significance to that risk. However, Montgomery did not define the legal standard relating to the assessment of whether an alternative treatment is reasonable. McCulloch held the correct legal test to be applied as to whether an alternative treatment is reasonable is the professional‐practice test in Bolam v Friern Hospital Management Committee. There are practical, doctrinal and normative reasons to question whether Bolam is the correct legal test in respect of the assessment of reasonable alternative treatments. Additionally, the conceptualisation of Bolam in McCulloch is overly deferential. McCulloch fails to fully consider Montgomery’s emphasis that autonomy‐respecting principles are the values that risk disclosure practices are sensitive to.
{"title":"Still No(,) More Bolam Please: McCulloch and others v Forth Valley Health Board","authors":"Clark Hobson","doi":"10.1111/1468-2230.12909","DOIUrl":"https://doi.org/10.1111/1468-2230.12909","url":null,"abstract":"<jats:italic>McCulloch</jats:italic> v <jats:italic>Forth Valley Health Board</jats:italic> concerned an allegation of negligence, in failing to consider treating pericarditis with non‐steroidal anti‐inflammatory drugs as a reasonable alternative treatment and not discussing this option with the patient. <jats:italic>Montgomery</jats:italic> v <jats:italic>Lanarkshire Health Board</jats:italic> held that a medical professional must disclose to a patient material risks and any reasonable alternative treatments. The materiality of a risk is to be decided by reference to a reasonable person in the patient's position, or where the medical professional should be reasonably aware that the particular patient is likely to attach significance to that risk. However, <jats:italic>Montgomery</jats:italic> did not define the legal standard relating to the assessment of whether an alternative treatment is reasonable. <jats:italic>McCulloch</jats:italic> held the correct legal test to be applied as to whether an alternative treatment is reasonable is the professional‐practice test in <jats:italic>Bolam</jats:italic> v <jats:italic>Friern Hospital Management Committee</jats:italic>. There are practical, doctrinal and normative reasons to question whether <jats:italic>Bolam</jats:italic> is the correct legal test in respect of the assessment of reasonable alternative treatments. Additionally, the conceptualisation of <jats:italic>Bolam</jats:italic> in <jats:italic>McCulloch</jats:italic> is overly deferential. <jats:italic>McCulloch</jats:italic> fails to fully consider <jats:italic>Montgomery</jats:italic>’s emphasis that autonomy‐respecting principles are the values that risk disclosure practices are sensitive to.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141548199","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article explains the broader stakes of contemporary British gambling reform debates, via an analysis of the White Paper High Stakes: Gambling Reform for the Digital Age (2023). I lay out the context to the White Paper, and I summarise its main proposals, focusing especially on efforts to reduce the harms caused by gambling. I also offer a critical analysis of one particularly significant and contentious proposed reform: mandated affordability checks for online gambling, when losses reach certain thresholds. I suggest that these checks reflect and deepen a shared regulatory, industry, and academic faith in online gambling technologies to resolve social responsibility problems, with wider implications for consumer surveillance and public health.
{"title":"Gambling Control in a Cost‐of‐Living Crisis: An Analysis of the White Paper High Stakes: Gambling Reform for the Digital Age (2023)","authors":"Kate Bedford","doi":"10.1111/1468-2230.12904","DOIUrl":"https://doi.org/10.1111/1468-2230.12904","url":null,"abstract":"This article explains the broader stakes of contemporary British gambling reform debates, via an analysis of the White Paper <jats:italic>High Stakes: Gambling Reform for the Digital Age</jats:italic> (2023). I lay out the context to the White Paper, and I summarise its main proposals, focusing especially on efforts to reduce the harms caused by gambling. I also offer a critical analysis of one particularly significant and contentious proposed reform: mandated affordability checks for online gambling, when losses reach certain thresholds. I suggest that these checks reflect and deepen a shared regulatory, industry, and academic faith in online gambling technologies to resolve social responsibility problems, with wider implications for consumer surveillance and public health.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141522204","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"JoseBellido and KathyBowrey, Adventures in Childhood: Intellectual Property, Imagination and the Business of Play, Cambridge, Cambridge University Press, 2022, 250pp, hb, £85.00","authors":"Luke McDonagh","doi":"10.1111/1468-2230.12902","DOIUrl":"https://doi.org/10.1111/1468-2230.12902","url":null,"abstract":"","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141548201","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
How should tort law respond to climate change? In Smith v Fonterra, New Zealand's Supreme Court provided some important answers. This note summarises the decision, and situates it within broader debates about the function of tort law and its necessary evolution in response to climate change. The Supreme Court's decision hints at possibilities for the ‘climatisation’ of tort law, and highlights the double life of tort law as both a backward‐looking mechanism of corrective justice, and a forward‐looking mechanism of risk regulation. As climate‐related harms intensify, the question will be how, rather than if, tort law evolves to meet the challenge. Smith v Fonterra may be one of the first cases to ask that question, but it will not be the last.
{"title":"Smith v Fonterra and the Climatisation of Tort Law","authors":"Sam Bookman","doi":"10.1111/1468-2230.12908","DOIUrl":"https://doi.org/10.1111/1468-2230.12908","url":null,"abstract":"How should tort law respond to climate change? In <jats:italic>Smith</jats:italic> v <jats:italic>Fonterra</jats:italic>, New Zealand's Supreme Court provided some important answers. This note summarises the decision, and situates it within broader debates about the function of tort law and its necessary evolution in response to climate change. The Supreme Court's decision hints at possibilities for the ‘climatisation’ of tort law, and highlights the double life of tort law as both a backward‐looking mechanism of corrective justice, and a forward‐looking mechanism of risk regulation. As climate‐related harms intensify, the question will be how, rather than if, tort law evolves to meet the challenge. <jats:italic>Smith</jats:italic> v <jats:italic>Fonterra</jats:italic> may be one of the first cases to ask that question, but it will not be the last.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141548285","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Jed Meers, Joe Tomlinson, Alice Welsh, Charlotte O'Brien
In the past few years, more than six million EU citizens living in the UK have transitioned to a new immigration status. The only evidence they have of this new status is in digital form. This group is now navigating the UK's ‘compliant environment,’ designed to deter unauthorised migration, with this new form of status. This has created an unpredictable new dynamic with serious risks of discrimination in everyday interactions, such as when people are trying to rent a property. In this article, we explore the impact of this digital‐only status by drawing on a large‐scale discrete choice experiment with private rented sector landlords, which shows that people with digital‐only immigration status are substantially penalised on the private rental market due to the form of their ID. We argue that this discrimination is not only troubling in substance but also arguably amounts to a breach of non‐discrimination and equal treatment provisions under the Withdrawal Agreement (Article 12 and Article 23 respectively). The apparent lack of effective enforcement points to the potential limits of such protections after Brexit.
{"title":"Does Digital Status Unlawfully Penalise EU Citizens Accessing the UK's Private Rented Sector?","authors":"Jed Meers, Joe Tomlinson, Alice Welsh, Charlotte O'Brien","doi":"10.1111/1468-2230.12905","DOIUrl":"https://doi.org/10.1111/1468-2230.12905","url":null,"abstract":"In the past few years, more than six million EU citizens living in the UK have transitioned to a new immigration status. The only evidence they have of this new status is in digital form. This group is now navigating the UK's ‘compliant environment,’ designed to deter unauthorised migration, with this new form of status. This has created an unpredictable new dynamic with serious risks of discrimination in everyday interactions, such as when people are trying to rent a property. In this article, we explore the impact of this digital‐only status by drawing on a large‐scale discrete choice experiment with private rented sector landlords, which shows that people with digital‐only immigration status are substantially penalised on the private rental market due to the form of their ID. We argue that this discrimination is not only troubling in substance but also arguably amounts to a breach of non‐discrimination and equal treatment provisions under the Withdrawal Agreement (Article 12 and Article 23 respectively). The apparent lack of effective enforcement points to the potential limits of such protections after Brexit.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141548202","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Ruby Reed‐Berendt, Anne‐Maree Farrell, Matthew Watkins, John Harrington
This article explores the dynamics of devolved health policy and law‐making in the UK, drawing on a case study of opt‐out organ donation reform. Given that health is a significant area of devolved competence, such case studies offer the opportunity to examine both similarities and differences in approach between the four nations in the context of the UK's evolving constitutional settlement. We argue that there is a need to move away from the characterisation of the devolved health policy‐making process as being grounded in a convergence‐divergence approach, towards one that recognises the connection‐friction axis around which this process takes place. To explore this, we present findings from empirical research on opt‐out organ donation law reform. This, we suggest, demonstrates that whilst connectedness between government stakeholders, experts and advocacy groups was clearly vital in structuring the policy process, account should also be taken of how law operates not only as a medium for the playing out of political and ideological friction, but also for the achievement of connection to overcome this.
{"title":"The Connection‐Friction Axis in Devolved Health Policy and Law‐Making in the UK: A Case Study of Organ Donation","authors":"Ruby Reed‐Berendt, Anne‐Maree Farrell, Matthew Watkins, John Harrington","doi":"10.1111/1468-2230.12900","DOIUrl":"https://doi.org/10.1111/1468-2230.12900","url":null,"abstract":"This article explores the dynamics of devolved health policy and law‐making in the UK, drawing on a case study of opt‐out organ donation reform. Given that health is a significant area of devolved competence, such case studies offer the opportunity to examine both similarities and differences in approach between the four nations in the context of the UK's evolving constitutional settlement. We argue that there is a need to move away from the characterisation of the devolved health policy‐making process as being grounded in a convergence‐divergence approach, towards one that recognises the connection‐friction axis around which this process takes place. To explore this, we present findings from empirical research on opt‐out organ donation law reform. This, we suggest, demonstrates that whilst connectedness between government stakeholders, experts and advocacy groups was clearly vital in structuring the policy process, account should also be taken of how law operates not only as a medium for the playing out of political and ideological friction, but also for the achievement of connection to overcome this.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141150130","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There is a clear tendency among judges and scholars to regard torts like chemical compounds: as things comprising a fixed list of elements (such as duty, breach, causation etc). But it is sometimes said that claimants in tort cases must also demonstrate that a condition of actionability has been met, or that a standing requirement within a particular tort has been satisfied. The use of these other terms raises two important questions. First, how a tort's elements may be distinguished from (1) conditions of actionability and (2) standing rules; and secondly, why any such distinction matters. This article addresses these questions and makes three key claims. The first such claim is that conditions of actionability may indeed be distinguished from elements. The second is that rules described as standing requirements within certain torts have no discrete juridical identity. The final claim is that appreciating the distinction between elements and conditions of actionability is important in both practical and theoretical terms.
{"title":"Unpicking Torts: Elements, Conditions of Actionability and Standing Rules","authors":"John Murphy","doi":"10.1111/1468-2230.12899","DOIUrl":"https://doi.org/10.1111/1468-2230.12899","url":null,"abstract":"There is a clear tendency among judges and scholars to regard torts like chemical compounds: as things comprising a fixed list of elements (such as duty, breach, causation etc). But it is sometimes said that claimants in tort cases must <jats:italic>also</jats:italic> demonstrate that a condition of actionability has been met, or that a standing requirement within a particular tort has been satisfied. The use of these other terms raises two important questions. First, how a tort's elements may be distinguished from (1) conditions of actionability and (2) standing rules; and secondly, why any such distinction matters. This article addresses these questions and makes three key claims. The first such claim is that conditions of actionability may indeed be distinguished from elements. The second is that rules described as standing requirements within certain torts have no discrete juridical identity. The final claim is that appreciating the distinction between elements and conditions of actionability is important in both practical and theoretical terms.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141150128","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Folúkẹ́Adébísí, Decolonisation and Legal Knowledge: Reflections on Power and Possibility, Bristol, Bristol University Press, 2023, 204 pp, hb £85.99, pb £26.99","authors":"Bhumika Billa","doi":"10.1111/1468-2230.12895","DOIUrl":"https://doi.org/10.1111/1468-2230.12895","url":null,"abstract":"","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140927251","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Universal jurisdiction enables the prosecution of international crimes by domestic courts in the absence of any nexus between the prosecuting state and the crime charged. While the temptation is for domestic judges to proceed with ‘business as usual’ in the conduct of such trials, difficulties in the practice of universal jurisdiction reflect the importance of developing a better understanding of the distinctive communities, interests, crimes and cultures these trials are intended to serve. The exercise of universal jurisdiction is commonly regarded as a form of domestic jurisdiction exercised pursuant to a sovereign right under international law. This article invites a re‐conceptualisation of the concept of universal jurisdiction, explaining that it is not a form of domestic jurisdiction acquired based on sovereign nexus between the crime charged and the prosecuting state. Instead, it should be recognised as a form of decentralised ‘international jurisdiction’, exercised as part of a state's contribution to the enforcement of international criminal law. This re‐conceptualisation has implications for the way in which domestic courts engage with many of the challenges facing universal jurisdiction trials, including problems of community, case selection, proof and translation.
{"title":"Universal Jurisdiction: Law out of Context","authors":"Devika Hovell, Mara Malagodi","doi":"10.1111/1468-2230.12898","DOIUrl":"https://doi.org/10.1111/1468-2230.12898","url":null,"abstract":"Universal jurisdiction enables the prosecution of international crimes by domestic courts in the absence of any nexus between the prosecuting state and the crime charged. While the temptation is for domestic judges to proceed with ‘business as usual’ in the conduct of such trials, difficulties in the practice of universal jurisdiction reflect the importance of developing a better understanding of the distinctive communities, interests, crimes and cultures these trials are intended to serve. The exercise of universal jurisdiction is commonly regarded as a form of domestic jurisdiction exercised pursuant to a sovereign right under international law. This article invites a re‐conceptualisation of the concept of universal jurisdiction, explaining that it is not a form of domestic jurisdiction acquired based on sovereign nexus between the crime charged and the prosecuting state. Instead, it should be recognised as a form of decentralised ‘international jurisdiction’, exercised as part of a state's contribution to the enforcement of international criminal law. This re‐conceptualisation has implications for the way in which domestic courts engage with many of the challenges facing universal jurisdiction trials, including problems of community, case selection, proof and translation.","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140927232","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Luke DimitriosSpieker, EU Values before the Court of Justice: Foundations, Potential, Risks, Oxford, Oxford University Press, 2023, 356 pp, hb £110.00","authors":"Tom L. Boekestein","doi":"10.1111/1468-2230.12896","DOIUrl":"https://doi.org/10.1111/1468-2230.12896","url":null,"abstract":"","PeriodicalId":47530,"journal":{"name":"Modern Law Review","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140837840","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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