Medical Law Review最新文献

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. It examines the introduction of the world's first assisted dying legislation in the Northern Territory in 1995 followed by the Federal Government's 1997 deprivation of the Territories' power to legislate on assisted dying invalidating said law. It further considers the fifty-seven failed Bills attempting to achieve law reform in this context in Australian jurisdictions between 1993 and 2017 with a view to identifying what factors may have contributed to the continuing lack of success. This article then outlines the rapid introduction of VAD laws in all six Australian States decriminalising VAD over the span of only 5 years. It ponders what may have changed to bring about this law reform. This article closes by contemplating potential future law reform in the Australian Territories, which have been reinstated with jurisdiction to legislate on VAD in December 2022.

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 medical assistance apply to adult asylum-seekers. It shows that the Charter may apply to various degrees to asylum-seekers depending on several circumstances, such as the national definition of residence or regular work, grounds for seeking asylum, citizenship or lack thereof. Depending on these factors, some asylum-seekers may receive full healthcare services, whereas others may have only limited rights. The article shows that the migrant statuses created by national and EU law do not fit in the system of statuses in the Charter, which might produce legal hindrances to accessing health-related rights for asylum-seekers. The article also discusses the possible ways for the European Committee of Social Rights to further expand the scope of the Charter's application.

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 the ones with limited access to healthcare facilities. Since drug laws in India do not expressly deal with other forms of access like the 'Compassionate Use' or 'Expanded Access' mechanism, demarcating the scope and describing the strategies for PTA are the need of the hour. We propose possible strategies to address inadequacies in the regulatory regime and establish 'win-win' situations among all stakeholders. We further argue that India is well positioned to provide leadership by developing detailed PTA provisions and may set a potential path for the other clinical trial host countries.

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. This article addresses the question of exactly when such an operational duty arises, with particular focus on the healthcare context in which deaths caused by medical negligence have not traditionally been regarded as amounting to violations of the right to life. This article argues that two key factors in determining the existence of an operational duty to save life are the assumption of responsibility and nature of risk. It also argues for the need to take surrounding circumstances into account and for an increased use of the right to life in holding public bodies to account for deaths caused by negligence in the healthcare context.

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) has been the subject of considerable controversy. In this article, we explore the current regulatory landscape around reproductive genetic testing techniques that may lead to NMSS, both internationally and within Australia. Specifically, we contrast the approach to regulating preimplantation genetic testing (PGT) with the minimal regulation of NIPT in Australia as a case study for reform. We examine ethical concerns raised in relation to NMSS, which form the basis of the current moratorium on the use of PGT for NMSS. We then highlight some key differences between using PGT for NMSS and NIPT for fetal sex determination to determine whether access to the latter should be regulated and, if so, how. We conclude that there is insufficient evidence to restrict access to NIPT for fetal sex determination and, based on our Australian case study, recommend a facilitative approach to regulating NIPT that would support individuals to make informed reproductive decisions.

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 and barristers and asked them: (i) whether Montgomery should apply to information about alternative diagnoses; and (ii) whether the Bolam/Bolitho standard should be rejected in 'pure diagnosis' cases. Our qualitative analysis of the interviews sheds light not only on the two questions posed, but also on three cross-cutting themes. First, Bolam/Bolitho is criticised on two grounds that are often conflated: its paternalism for patients and its deference to medical professionals. Second, adopting different standards for different aspects of treatment and diagnosis may be justified in principle, but it can sometimes be difficult or not make sense in practice. Third, new conceptions of patients, doctors, and courts are being articulated in terms of rights or responsibilities over risks. In mapping these issues at the frontiers of medical negligence, this empirical study identifies potential pressure points for future legal developments.

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, analysing its impact upon the continued criminalization of abortion and categorization of abortion as a medical matter, rather than a reproductive choice. We conclude that viability is misconceived in its application to abortion and that neonatal viability (relating to treatment of the premature infant) and fetal viability (related to the capacity to survive birth) must be distinguished to better reflect the social context within which the law and practice of abortion operate. We show how viability thresholds endanger pregnant people.