Medical Law Review最新文献

The Mental Capacity Act 2005 enables individuals to make advance decisions to refuse medical treatment once they lose mental capacity. However, scant attention has been given to the limit imposed by the Code of Practice upon the ability of an individual to refuse care, as opposed to treatment in an advance decision. This article examines the different meanings of 'basic care'. It interrogates the genesis of the exclusion within the Code of Practice. The article examines the problems created by the exclusion, both in definitional terms and in relation to the conflict created with respect for precedent autonomy. It argues that while such an exclusion could be justified on the basis of public policy at the turn of the 21st century, the evolution of greater respect for patient-centred decision-making and respect for human dignity require its re-evaluation. The article challenges the continued relevance of the exception in the light of shifts in public policy and the case law, proposing that the ability to make an advance decision about basic care as well as treatment is an essential element in the toolkit designed to ensure individualized care at the end of life.

In recent years, China has witnessed a remarkable digital health movement, wherein online pharmacies or drug e-commerce have emerged as disruptive business models. In 2019, China amended the Drug Administration Law to permit the online sale of prescription drugs to customers, albeit with certain limitations. This marked China's first national congress-level regulatory policy on online pharmacy regulation. The policy comprises two sub-policies: one targeting third-party online platforms involved in drug sales and another aimed at controlled drugs and other drugs under special administration that are prohibited from being sold online. However, this regulatory policy has sparked legal and ethical debates. The first revolves around whether or not online platforms engaged in drug sales can enjoy liability protection and to what extent; while the second centers on an ethical dilemma concerning access to controlled drugs due to their blanket ban on online sales. This article thoroughly examines the aforementioned regulatory policy. Moreover, during the coronavirus disease-2019 (COVID-19) pandemic, there was a surge in artificial intelligence (AI) applications within China's healthcare sector, leading to phenomenal growth of AI-driven online pharmacies staffed by so-called AI doctors and pharmacists. The article outlines a future research agenda for regulating emerging AI-enabled online pharmacies in the post-pandemic age before concluding.

This article explores how best interests decisions are made on behalf of adults with impaired capacity in China through the lens of P-centricity, or the extent to which P is kept at the centre of the decision-making process. A two-part review, comprising a textual analysis of relevant legislative provisions and a cross-sectional review of 550 recent Chinese judgments on Article 35 of the Civil Code, is conducted. While an intention to move towards P-centricity was found at the legislative level, it is argued that the ideals of P-centricity have not been implemented on the ground by the courts, as demonstrated by the lack of P's participation and P's perspective in the vast majority of the cases, as well as the lack of a systematic, consistent approach either to how judges approached best interests decision-making generally, or when and how they ascertained P's wishes in this process. Given the benefits of placing P at the centre of the decision-making process, recommendations relating to the development of judicial guidance and the training of judges are put forward.

Under the TRIPS framework, patents must be granted in all fields of technology, including health-technologies. Patents give rightsholders significant control over patented technologies as they enable them to exclude others from using these for commercial purposes. The human body per se is not patentable. However, many technologies that relate to how we treat, use, and modify the body are patentable. For example, in Europe, patentable technologies include those that can treat the body (eg, medicines), technologies that can affect how we use elements derived from the body (eg, isolated human genes are patentable in certain contexts), and technologies that can modify (including enhance) the body (eg, neuro-technologies). Using a novel five-category taxonomy of patentable technologies related to how we treat, use, and modify the human body, this article demonstrates that such patents-and their use-can pose significant bioethical implications, focusing on implications for autonomy, dignity, and bodily integrity interests. It demonstrates that these bioethical implications are not routinely considered in European patent grant or licensing decision-making. This article challenges this. It argues that greater scrutiny is needed over these bioethical implications and over the connection that patented technologies have with how we treat, use, and modify the human body.

The largest professional body of counsellors in Australia defines the relationship between counsellor and client as contractual 'and nothing else'. While contract law has been traditionally associated with 'rational', arms-length, commercial relationships, counselling and psychotherapy have been associated with intimate, emotional relationships, work, and exchange. What is the significance, therefore, of these seemingly dissonant discourses coming together in the counselling and therapeutic relationship? Is there a place for formal and distant contract law in the flexible and intimate therapy room? This article examines the role of contract in counselling and psychotherapy, and rather than finding a dissonance, it finds an important and productive relationship between the two. Drawing on interviews with registered practitioners in Australia, this article shows that contract performs both an 'infrastructural' and 'therapeutic' function. It provides a framework for service delivery and the meeting of professional standards, while simultaneously operating as a therapeutic tool. Importantly, in this self-regulated setting, the analysis demonstrates how practitioners navigate the 'formality' of contract to advance a broader formation of professional identity.

Law and policy concerning personal decision-making increasingly recognizes a role for support to enable greater autonomy and legal recognition for adults whose decision-making ability may be limited. Support for decision making (SFDM) is embedded in England and Wales under the Mental Capacity Act 2005 (MCA). It has also gained traction internationally through the UN Convention on the Rights of Persons with Disabilities (CRPD), to which the UK is a signatory. However, these two legal reference points diverge in their understanding of SFDM, which presents challenges for putting it into practice. A pragmatic review methodology identified 40 resources containing SFDM guidance, providing insight into its implementation and conceptualization in England. An analysis indicates the need for authoritative guidance that provides more multifaceted advice, recognizing key variables including: the nature of the decision, source of decision-making difficulties, and the relationship of the supporter. Gaps in guidance provision are also identified for decision-makers, third parties, and the mental health context. The resources largely conceptualize SFDM as a means to enable mental capacity. However, recent developments propose a CRPD-aligned approach that includes SFDM in the context of substituted decisions. This generates a dualistic model of SFDM in England, raising new questions in this area.

Since 2017, highly prescriptive voluntary assisted dying (VAD) laws have been adopted in all Australian states and one self-governing territory. The unique features of the Australian model and salient differences between Australian states and territories are poorly understood internationally. In this article, we provide an overview of the distinctive features of the Australian model of VAD and engage in a detailed comparison with legislation regulating assisted dying or euthanasia in other jurisdictions. We focus on variations in the eligibility criteria for accessing VAD, the request and assessment process, and the permitted method/s of administration. We also consider different international regimes permitting conscientious objection and regulating institutional objection to participating in VAD. Several distinctive features of the Australian model-such as a differential timeframe to death for different medical conditions, express residency requirements, the prohibition on health practitioners initiating conversations about VAD, and legal restrictions on the availability of practitioner administration-have already served as models for other countries in enacting VAD laws. As other countries consider legalizing the practice, there is much to learn from the Australian model.

The article examines ways to address the problems of cross-border surrogacy, based on existing initiatives to create an international legal framework and the case law of the European Court of Human Rights (ECtHR). I will first outline the problems associated with cross-border surrogacy and describe efforts to overcome these problems by adopting an international treaty or universally accepted standards in this area. Then I turn my attention to the nature of the right to private and family life and the general conditions for balancing this right against various public interests. The remainder of the article lies in a systematic analysis of the case law of the ECtHR on cross-border surrogacy, which has the potential to harmonize national approaches by establishing a minimum standard of human rights protection. I pay particular attention to the principle of the best interests of the child, the interpretation of which is a decisive factor and can thus serve as a general starting point for the resolution of human rights cases arising from cross-border surrogacy.

In fitness-to-practise hearings for doctors and other health care professions, the practitioner's 'insight' into their past misconduct or deficient performance takes centre stage in determining outcomes. Although insight does not feature in the statutory framework, it has emerged as a regulatory device used to distinguish the 'good doctor' from the 'bad apple' who should be excluded from the profession in order to protect the public. This article frames the concept of 'insight' in professional discipline as an example of Foucauldian avowal-a ritual of truth-telling which requires the doctor's full acknowledgement and admission of wrongdoing and a disavowal of their former self. If successful, avowal enables reintegration of the practitioner into the profession's social order. 'Insight' is then tracked as a contested site in doctors' fitness to practise appeals across a period of more than 25 years, exploring its clinical origins, expansion, and modern application. The accumulated case law confirms insight as a deeply embedded staple of fitness to practise decision-making and a core regulatory strategy for protecting patients, while highlighting that it is inevitably compromised by issues of authenticity.

Aiding in suicide is no criminal offence under German law. In addition, a constitutional right to a self-determined death exists, including relying on third-party assistance, where offered. To exercise such a constitutional right, persons require access to effective lethal medication. Pentobarbital is a substance commonly used in jurisdictions allowing assisted dying. Yet, in Germany, the Federal Institute for Drugs and Medical Devices, based on the Narcotic Drugs Act, categorically rejects pentobarbital licence applications with the consequence that pentobarbital is not available in Germany for assisted suicide purposes. Persons wanting to die must either rely on other, frequently less effective drugs or find a medical practitioner willing to set up an intravenous infusion with a lethal substance. This may prove difficult in practice. Several unsuccessful applicants have therefore challenged these licence rejections, but administrative courts have generally upheld the Federal Institute's decisions. This article examines whether the section in the Narcotic Drugs Act, which in its current interpretation prevents access to pentobarbital, is constitutional. It analyses whether this restriction disproportionately limits the constitutional right to a self-determined death of licence applicants and concludes that, due to its severe impact on persons wishing to die, serious doubts arise regarding the section's constitutionality.