Medical Law Review最新文献

If in vitro gametogenesis (IVG), the derivation of eggs or sperm from somatic tissue, is successfully applied to humans, it could reshape UK reproductive law. In particular, IVG could transform the legal and ethical landscape for posthumous conception by expanding the availability of gametes beyond the constraints of time and traditional gamete retrieval methods. This article advances three claims with respect to IVG's potential impact on posthumous conception. First, IVG could undermine 'invasiveness' based ethical objections to posthumous gamete retrieval. Secondly, by avoiding ovarian stimulation and surgical retrieval, IVG could narrow gender disparities in the gametes available for posthumous use. Thirdly, because IVG-derived material does not currently fall within the definition of 'permitted' gametes under the UK's Human Fertilization and Embryology Act 1990, UK clinics will remain barred from using them in treatment absent statutory reforms. In practice, IVG could therefore expand gamete procurement and storage with requests for clinical use proceeding by export rather than domestic treatment. The arguments put forward throughout are based on IVG advancing in line with current expectations. The conclusions do not presuppose that IVG is imminent but rather are made considering the technology's potential realization and the prospective consequences for posthumous conception.

The financial strain placed on healthcare systems, along with growing health needs and an increasingly ageing population, has led to calls for age-based healthcare rationing. A key question, therefore, concerns the extent to which justice is achieved for older patients in healthcare resource allocation. This work forms a three-dimensional adaptation of justice for healthcare resource allocation and older patients, consisting of redistribution, procedural justice, and recognition, to create a justice lens. This lens assesses the UK Public Sector Equality Duty's (PSED's) role in commissioning healthcare services and its objective to eliminate discrimination. This assessment determines the extent to which justice is achieved for older patients, addressing the lack of age discrimination case-law in healthcare resource allocation. This assessment finds that the PSED's legal framework does not satisfy the justice lens. A healthcare commissioning guide is subsequently developed, fulfilling the justice lens, suggesting steps promoting justice for older patients through equality in allocating healthcare resources.

A contentious issue within medical management of innate variations of sex characteristics (or intersex variations, IVSC) is the impact of medical photography. Historically, egregious breaches of human rights, lack of dignity and respect, and pathologization have characterized medical photography of people with IVSC. Since the mid-20th century, medical management of IVSC has focused on children, resulting in a shift to photographing minors. The imagery focuses on genitals and, with the development of digital imaging technology, is widely shared within medical circles and disseminated in medical journals and books. Medical photography is regulated within privacy law and policy. Regulation relevant to photographs of the genitals of infants and children with IVSC is scant, despite evidence that actual practices raise significant risks of harm, including lack of personal consent, poor documentation, poor data storage and security, and the potential for images to escape beyond the control of health professionals. There is little regulation of the processes of medical photography, which are known to contribute to very poor mental health outcomes for people with IVSC. This article provides detailed recommendations for reform of law and policy regulating medical photography of children with IVSC to prioritize their well-being and mental health.

In this article, we analyse the concept of mental capacity through considerations of epistemic injustice. We suggest that an assessment of a person's capacity will always involve consideration of their epistemic credibility. Understanding capacity assessments in this manner allows us to illustrate the epistemic exclusions and injustices that can arise. First, attitudes and stereotypes about mental disability and illness, as well as characteristics such as gender and race, can make a significant difference in terms of who is believed and considered credible. We raise concerns for the potential of these biases to influence capacity assessments inadvertently. Secondly, a person deemed to lack capacity has their epistemic agency significantly curtailed; their contributions to the decision-making process are not those of a full epistemic agent, but those of a derivatized subject, giving rise to epistemic exclusion. We further argue that capacity determinations rely on specific hermeneutical resources, namely those based in medical-scientific or legal knowledge, which may be inapt for interpreting the experiences of disabled people and those with mental illness. Finally, we highlight important insights that this approach provides for considering options for reform in practice and in law.

The 'reasonable expectations of privacy' test has become central to English information law. The fact-specificity of this test has obfuscated the scope of patients' privacy rights. In both R (W, X, Y & Z) v Secretary of State for Health and Prismall v Google, the claimants were found to lack a circumstantially reasonable expectation of privacy when their identifiable information was disclosed outside the healthcare system, obviating the need for justification under Article 8 European Convention on Human Rights (ECHR). In response to these developments, this article argues for a legal presumption of privacy when patients' data are used for purposes other than their healthcare. This would be a development of the courts' existing 'starting point' of assuming reasonable expectations of privacy in identifiable medical information. The two cases explored in this article suggest that this 'starting point' is not enough, and still affords judges broad discretion to evaluate a (non-exhaustive) list of factors in each individual case. For the sake of the clarity and accessibility of patients' rights, I argue that privacy should be presumed by default when their data are used for purposes other than their healthcare.

Clinical audit is an essential tool for improving clinical practice by assessing care against evidence-based standards. Yet, the disclosure of clinical audit records raises complex legal and ethical challenges. While transparency fosters patient trust, it also risks discouraging healthcare professionals from full participation due to potential reputational and legal consequences. This article examines the legal frameworks governing clinical audit record disclosure in Ireland, England, and Australia, highlighting key differences in each jurisdiction's approach. Ireland recently introduced legislation that shields clinical audit records from disclosure, whereas Australia's qualified privilege model provides conditional protection that courts may override in the interests of justice. In contrast, England lacks explicit safeguards except for its newly introduced 'safe space' legislation, which applies only to Health Service Safety Investigations Body investigations. Through comparative analysis, this article evaluates the strengths and weaknesses of each approach and advocates for reform in England. It argues for expanding England's 'safe space' model to align more closely with Australia's qualified privilege framework while addressing its limitations by introducing clearer exceptions and explicit guidance on its interaction with the professional and statutory duties of candour.