Jean McHale

Organ Transplantation, the Criminal Law, and the Health Tourist

Cross-border healthcare is an increasing international phenomenon in England and Wales. Individuals may seek treatment abroad for a range of reasons. One reason may be to facilitate speedier treatment and to bypass waiting lists. Across the European Union, patients have been able to utilize rights of free movement in EU law to facilitate the provision of treatment by claiming reimbursement of treatment when they argued that the waiting times for particular treatment subjected them to undue delay. Some may travel with the aim of seeking low-cost private dentistry or cosmetic surgery. In other instances the aim may be to avoid statutory or regulatory prohibitions in relation to certain procedures in England and Wales. Similarly, for many years individuals traveled to Italy to seek IVF treatment unavailable to them in the UK, until the regulatory regimes in that jurisdiction tightened. In recent years there have been a steady number of persons traveling to Switzerland to end their lives, in an attempt to bypass the statutory prohibition on assisted suicide in England and Wales, although whether this would fall under the heading of healthcare is contestable notwithstanding the fact that it has been the subject of academic attention. The focus in this article is on one particular form of cross-border treatment: patients who travel from England and Wales to obtain organ transplants through paid donations, payment that, were it to take place within England and Wales, would be prohibited under the Human Tissue Act 2004 through the operation of the criminal law. Although the Human Tissue Act 2004 criminalizes trafficking in material for the purposes of transplantation in England and Wales, what it does not do is to make specific provision for its application outside the jurisdiction. This may have been because paid cross-border transplantation was not thought to be a problem at the time of its enactment. Certainly this issue does not seem to have been the subject of parliamentary consideration during the passage of the legislation. To some extent, this is perhaps not surprising, given that the trigger

Accountability, Governance and Biobanks: The Ethics and Governance Committee as Guardian or as Toothless Tiger?

The huge potential of biobanks/genetic databases for the research community has been recognised across jurisdictions in both publicly funded and commercial sectors. But although there is tremendous potential there are likewise potential difficulties. The long-term storage of personal health information and samples poses major challenges. This is an area is fraught with ethical and legal uncertainties. Biobanks raise many questions of the control of rights, of consent, of privacy and confidentiality and of property in human material. It is thus unsurprising then that there has been a lively debate as to how biobanks should operate, the boundaries of participation and what governance structure, if any they should adopt, a debate which has been engaged in across the academic community and by funders and researchers alike. This paper asks despite the good intentions can ad hoc ethics and ethics and governance committees long term provide an effective solution to the legal and regulatory challenges arising from biobanks.

The UK Human Rights Act 1998: implications for nurses

In this article we consider some of the implications of the UK Human Rights Act 1998 for nurses in practice. The Act has implications for all aspects of social life in Britain, particularly for health care. We provide an introduction to the discourse of rights in health care and discuss some aspects of four articles from the Act. The reciprocal relationship between rights and obligations prompted us to consider also the relationship between guidelines in the United Kingdom Central Council’s Code of professional conduct and the requirements of the Human Rights Act 1998. We conclude with the recommendation that the new legislation should be welcomed for its potential to support good practice and to urge critical and reflective practice rather than as yet another burdensome bureaucratic imposition.

Whistleblowing in the nhs

Abstract Is a health-care professional ever justified in “blowing the whistle” and making a public statement about what he or she regards as an inadequate provision of care in the National Health Service? This article examines the legal and ethical problems facing the health-care professional who contemplates such a disclosure, will he or she be able to disclose and still keep his or her anonymity, will publication of his or her revelations by the press be restrained, what are the consequences for him or her as an employee? The article concludes by examining whether reform is needed to allow the whistleblower to disclose.

Nanomedicine and the EU: Some Legal, Ethical and Regulatory Challenges

The development of nanomedicine has the potential to revolutionise care and treatment of patients. However the rise of this new technology has been subject to considerable controversy. The EU itself while promoting the development of nanomedicine and nanotechnology has become increasingly concerned to address some of the reservations which have been expressed regarding this technology. This paper explores what legal, ethical and regulatory challenges are posed by nanomedicine, how the EU has engaged with these to date and how EU law and policy in this area may develop in the future.

Framing a Right to Treatment in English Law? Watts in Retrospective

The Watts decision of the ECJ in 2006 led to consternation amongst media and policy makers alike in the UK. Did this really mean that EU law had granted NHS patients for the first time an explicit ‘right to treatment’? What would the implications be for individual patients and Member States? But as the dust has started to settled and we have time to take pause will Watts really prove a turning point or will time show that it is yet another healthcare law decision more noted for the publicity it receives in England and Wales than its long-term impact on law or on health policy? This article attempts to set Watts in the context of more general health law and policy in the UK. First it begins with a brief outline of the Watts case setting it in the context of domestic and ECJ jurisprudence. Secondly, it considers whether Watts does change the existing position and create a ‘right to healthcare’ in the context of NHS treatment. It considers the practical impact on patients seeking treatment abroad in relation to both primary care and secondary-hospital care. Thirdly, it considers the impact of the judgment on the NHS itself and on resource allocation in general. It suggests that while on its face the decision has the potential to undermine resource allocation policy the practical impact of the case may prove much more restrictive. Fourthly, it considers the impact of further EU developments post-Watts on access to healthcare across the EU.

Health Care, the United Kingdom and the Draft Patients’ Rights Directive: One Small Step for Patient Mobility but a Huge Leap for a Reformed NHS?

Interestingly the trigger for re-evaluating patients’ health care rights in the EU has come not from the Charter but rather from the evolving jurisprudence regarding free movement and medical treatment. The EU has now gone further and proposed a draft Patients’ Rights Directive. This chapter explores first, the background to the Directive, the evolution of the free movement cases and how these came to impact upon the delivery of NHS patient care. It questions how radical the impact of cases in this area upon the NHS has been to date. Secondly, the chapter explores the draft Directive proposals concerning patient mobility and what their impact could be upon the NHS. It examines the implications of recent developments in the form of the NHS Act 2006 which introduce new provisions concerning patient reimbursement for treatment. Thirdly, it explores some of the broader ramifications of proposals in the draft Directive for the UK in relation to issues such as standards of patient care. It suggests that while the rise in patient mobility by itself does not seem, in the short-term at least, to have radically undermined resource allocation decision making in the NHS some of the other proposals in the Directive could prove more influential in relation to evolving standards of patient safety and quality of care in the future.

Mental health law and the EU: the next new regulatory frontier?

Over the last decade the EUs engagement with health law and policy has rapidly increased and there is now a growing body of literature highlighting this evolution and the impact of legal and regulatory structures in this area. In contrast the specific impact of EU law and policy in relation to the area of mental health remains the subject of comparatively little engagement. The aim of this paper is to examine whether mental health law and policy will become a major site for EU policy and law in the future. It examines the development of EU policy in this area. It sets this in the context of related legal developments such as the Charter of Fundamental Rights and the new EU Patients Rights Directives. It suggests that while it might be at present premature to envisage that a single body of EU mental health law itself may be unlikely that nonetheless the EU presents what is a potentially very influential site for regulation, law and policy in this area in the years to come.

Whistleblowing in the NHS revisited

Abstract Whistleblowing in the NHS has rarely been away from the headlines since my earlier article on the subject in this Journal in 1992 (McHale, 1992). Cases such as those of Helen Zeitlin and Grahame Pink have generated considerable publicity and draft guidelines on whistleblowing have been published by the government. In this article I take up the threads of my discussion on whistleblowing and ask what comfort recent developments afford to the NHS employee who believes that the public needs to be made aware of inadequate standards of health care.

Ethical, cultural, and spiritual dimensions of healthcare practice

Enhanced migration, evolving communities, and changing attitudes across jurisdictions have led to new challenges for the delivery of healthcare. As populations become more culturally diverse, there is the prospect that the norms of individual health professionals and patients may diverge. Does this mean that we should embrace and recognize diversity? Or does this lead us to question the legitimacy of different norms and different perspectives? Are healthcare professionals simply ‘‘professionals’’ who should leave their own moral, ethical, religious beliefs at home? Or should we redefine the boundaries of professional responsibility in the light of such beliefs? In the past, these questions have arisen in Western jurisdictions in the context of conscientious objection in the area of reproductive medicine, but this is becoming an increasingly global question. We should also ask to what extent the delivery of healthcare services should be redefined to reflect a culturally diverse patient population. Is this is a necessity in a world in which healthcare practice is increasingly informed by respect for fundamental human rights and dignity as exemplified in international law through the Universal Declaration of Human Rights? The articles in this issue of Nursing Ethics reflect some of the challenges arising from these questions and also from the diversity in practices and approaches across jurisdictions. In the context of the United Kingdom, Samanta illustrates the challenges of accommodating diversity in healthcare delivery in a jurisdiction where such care delivery will be increasingly impacted by the evolution of equality law in the form of the implementation of the Equality Act 2010. The considerable challenges in respecting cultural diversity are illustrated by Susilo et al.’s article examining these issues in relation to healthcare delivery in Indonesia. Defining the role of the nurse in terms of their own rights as well as responsibilities is increasingly recognized in some jurisdictions. In others, characterizing the nurses’ role in terms of their rights is a more recent development, and the implications of this are highlighted in the empirical study of Italian nurses by Kangasniemi et al. Raising awareness of questions of ethnicity, cultural, and spiritual practices should moreover not be simply a matter for determining on a case-by-case basis day by day but rather it requires reflection and, where necessary, regulation. It also requires education as highlighted by Choe et al. The need for bioethical education in nursing programs remains critically important as do clear ethical codes (see further the article by Kim et al. in this issue). What is notable is that the whole area of the interface amongst ethics, culture, faith, belief, and spirituality is ripe for further consideration and evaluation by nurses, ethicists, lawyers, and regulators alike. As highlighted in several articles in this volume—by Almedia et al. in the context of spirituality in blood donation and by Ravari et al.—further research in these and related areas is needed in the future.