Medical Law Review最新文献

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.

This article explores the role of mediation in best interests disputes concerning the provision of health and care to children. These cases concern disagreements between healthcare professionals and family members about which treatment should be provided. Mediation, a form of non-judicial resolution, has been argued for as an alternative and more supportive way of approaching these challenging, and often emotionally charged, disagreements. However, mediation is a confidential process, and this can lead to a lack of reliable data. Drawing on data from an empirical project, which looked at the role of mediation in medical treatment disputes, we highlight mediation's role in securing the best interests of the child. We explore three themes related to best interests: compromise, delay, and coercion. We argue that there is limited evidence from our research of compromise or coercion through the use of mediation, albeit there is some evidence of health professionals feeling pressured into participating in mediation. However, there is evidence that mediation can cause delay in resolution. We suggest that whether this undermines the child's best interests will depend upon the interpretation, noting that there is value in seeking agreement but the interests of the child need to be at the forefront.

Wearable devices such as smartwatches and fitness bands are increasingly being touted for use in healthcare. The suggestion that they could enhance treatment while reducing costs has resonated with governments in the USA, the UK, and beyond. This exploratory article examines the regulatory challenges that arise as wearables transition from consumer to health contexts. The amount of data wearables generate poses a challenge to device manufacturers and data processors-whose terms and conditions and security measures have drawn numerous data protection, privacy, and surveillance concerns. This article presents findings from empirical research into contemporary use of wearables in the UK, based on a Freedom of Information request submitted to 37 National Health Service Hospital Trusts. It casts doubt on whether individual consent to data processing is appropriate for a healthcare context characterized by unequal power dynamics between patients, health professionals, and corporate interests. The assumption that consent will suffice forms the basis of existing regulations, including the EU General Data Protection Regulation 2018 and the UK Data Protection Act 2018. Alternative regulatory models, including open data and data sovereignty, should be considered if public healthcare systems are to utilize wearables without damaging patient trust and confidence.