Jonathan Herring

“Please Don’t Tell Me”: The Right Not to Know

Knowledge is generally a good thing. People who know lots of bits of information are generally admired. Some of them win prizes in TV competitions. If you were offered the gift of having an entire encyclopedia wired into your brain, you would probably accept, without thinking. But we should be wary of assuming that all knowledge is good. Too much knowledge can inhibit rather than enable thought.

The welfare principle and the children act: presumably it's about welfare?

This article considers the use of presumptions by courts when interpreting the welfare principle in the Children Act 1989. It notes that in recent years the courts have turned away from the use of presumptions and preferred to apply the welfare principle to the facts of the case, free from generalisations. This article is supportive of this move, but explores the reasons why presumptions appeal to some lawyers. While the courts have generally, quite properly, rejected these arguments, one has not been considered sufficiently. That is that presumptions are used to indicate that the law believes that a particular matter constitutes an intrinsic good for children. While this argument is not supported by the author, it may better explain the support for presumptions, than the arguments commonly relied upon.

Relational Autonomy and Family Law

This article considers how an approach based on relational autonomy might inform family law. It argues against the use of individualised conceptions of rights and instead in favour of approach that seek to respect relationships.

Forging a relational approach: Best interests or human rights?

This article considers whether someone who is attracted to relational ethics is likely to find a rights-based approach or a best interests-based approach to medical law more amenable to accommodating the responses they would wish to promote. Many of those promoting relational approaches have rejected the standard legal approaches and preferred instead to promote alternatives based on an ethic of care. The article explores the capacity of both rights and best interests in the context of medical law to take account of relational values. It accepts that both approaches raise concerns for relational ethicists, but both have the potential to develop promising line of argument. It seeks to analyse and explore them.

Testing the limits of the ‘joint account’ model of genetic information: a legal thought experiment

We examine the likely reception in the courtroom of the ‘joint account’ model of genetic confidentiality. We conclude that the model, as modified by Gilbar and others, is workable and reflects, better than more conventional legal approaches, both the biological and psychological realities and the obligations owed under Articles 8 and 10 of the European Convention on Human Rights (ECHR).

Elbow Room for Best Practice? Montgomery, Patients' values, and Balanced Decision-Making in Person-Centred Clinical Care.

The UK Supreme Court Montgomery judgment marks a decisive shift in the legal test of duty of care in the context of consent to treatment, from the perspective of the clinician (as represented by Bolam rules) to that of the patient. A majority of commentators on Montgomery have focused on the implications of the judgment for disclosure of risk. In this article, we set risk disclosure in context with three further elements of the judgment: benefits, options, and dialogue. These elements, we argue, taken together with risk disclosure, reflect the origins of the Montgomery ruling in a model of consent based on autonomy of patient choice through shared decision-making with their doctor. This model reflects recent developments in both law and medicine and is widely regarded (by the General Medical Council and others) as representing best practice in contemporary person-centred medicine. So understood, we suggest, the shift marked by Montgomery in the basis of duty of care is a shift in underpinning values: it is a shift from the clinicians interpretation about what would be best for patients to the values of (to what is significant or matters from the perspective of) the particular patient concerned in the decision in question. But the values of the particular patient do not thereby become paramount. The Montgomery test of duty of care requires the values of the particular patient to be balanced alongside the values of a reasonable person in the patients position. We illustrate some of the practical challenges arising from the balance of considerations required by Montgomery with examples from surgical care. These examples show the extent to which Montgomery, in mirroring the realities of clinical decision-making, provides elbowroom for best practice in person-centred clinical care.

Mental disability and capacity to consent to sex: A Local Authority v H [2012] EWHC 49 (COP)

In A Local Authority v H [2012] EWHC 49 (COP) Hedley J considered an application to declare that a young woman lacked capacity to engage in sexual relations. He set out what an individual had to understand in order to be able to consent to sex and determined that in this case she lacked the capacity to do so. This note criticises the approach taken by the courts in such cases arguing that the question the courts are asked is the wrong one.

Health as Vulnerability; Interdependence and Relationality

This article challenges the assumptions that underpin many discussions about health. In particular the view that healthy people are autonomous, self-sufficient and contained. It will argue that in our nature humans are, and should be, vulnerable, interdependent and caring. Health must be understood in a way which recognises that. We should not hide from the precarious, leaky, relational aspect of our bodies, but rejoice in them.

The Meaning of Autonomy

At its heart autonomy, traditionally understood, involves a claim that individuals should be allowed to make decisions for themselves and that those decisions should be respected by others, unless the decision involves harming someone else.

Interconnected, inhabited and insecure: why bodies should not be property

This article argues against the case for regarding bodies and parts of bodies to be property. It claims that doing so assumes an individualistic conception of the body. It fails to acknowledge that our bodies are made up of non-human material; are unbounded; constantly changing and deeply interconnected with other bodies. It also argues that holding that our bodies are property does not recognise the fact that we have different attitudes towards different parts of our removed bodies and the contexts of their removal. The appropriate legal reform should, therefore, be to produce a statute which can provide a balance between the competing personal, social and interpersonal interests in different body parts.