Margaret Brazier

The organs crisis and the Spanish model: theoretical versus pragmatic considerations

In the United Kingdom, the debate about how best to meet the shortfall of organs for transplantation has persisted on and off for many years. It is often presumed that the answer is simply to alter the law to a system of presumed consent. Acting perhaps on that presumption in his annual report launched in July, the Chief Medical Officer, Sir Liam Donaldson, advocated a system of organ donation based on presumed consent, the so-called “opt-out” system.1 He is calling for a change in the law in England and Wales whereby consent to organ donation is presumed, making a person’s organs automatically available for transplantation after death, unless they registered objections to this while alive. Subsequently, the British Medical Association (BMA) lent its support to the introduction of such a system.2 The BMA contends that “the practice of presumed consent legislation has had a significant effect on the number of cadaveric donors per million population.”2 It is often taken for granted that there must be a correlation between the enactment of legislation on presumed consent and an increase in organ donation and procurement. However, the correlation is not as straightforward as it might seem. It may be that other practical measures to encourage organ donation could be implemented without changing the Human Tissue Act 2004, an Act which has been in force for barely a year. An analysis by Abadie and Gay demonstrated that “presumed consent legislation has a positive and sizeable effect on organ donation rates”(p599),3 but they themselves admitted that the correlation between rates of donation and presumed consent legislation is “not completely unequivocal”(p606).3 It is true that among the most successful cases in procurement rates are countries with presumed consent legislation (Spain, Austria, Belgium, France and Italy). However, since some of the …

Best interests and potential organ donors

Many potential donor organs are currently lost because of misunderstanding of the law. John Coggon and colleagues clarify what is permissible in non-heart-beating donation

DO NO HARM—DO PATIENTS HAVE RESPONSIBILITIES TOO?

T OWARDS the end of his judgment in R . v. Collins and Ashworth Hospital Authority ex p. Brady ,Kay J. (as he then was) delivered the following homily: it would seem to me a matter of deep regret if the law has developed to a point in this area where the rights of a patient count for everything and other ethical values and institutional integrity count for nothing.

Falling from a Tightrope: Doctors and Lawyers between the Market and the State

The organization of the medical and legal professions in Britain has depended heavily on ideologies of self-regulation, and on different institutional creations inspired by those ideologies. Self-regulation balances professions between the market and the state. In recent years both medicine and the law have been subjected to greater competition in the market, and greater control by the state. Part of the explanation for change lies in conditions particular to medicine and law but the similarity in recent regulatory experiences can only be explained by the working of common external forces. Two are identified: the impact of long-term cultural change on a regulatory balancing act originally created in an undemocratic and hierarchical society; and the impact of a modernizing elite in British government seeking to use state power to reverse the decline in British competitiveness.

Consent for blood transfusion

Millions of people receive blood transfusions each year, but many will not be fully aware of the risks. Anne-Maree Farrell and Margaret Brazier argue for a formalised consent procedure.Millions of people receive blood transfusions each year, but many will not be fully aware of the risks. Anne-Maree Farrell and Margaret Brazier argue for a formalised consent procedure

Never too old for health and human rights

The protection of the human rights of older people is becoming an increasingly urgent concern. At the same time, an analysis of the current legal protections available for older people to challenge health and care decisions exposes the obstacles faced in obtaining meaningful recognition and implementation of these rights. In this article, we consider the problems faced when relying on a primarily legalistic means of human rights protection. The potential to reconceptualize the issue and focus instead on what it means to secure rights for older people is explored. We conclude that moving away from reliance on predominantly procedural and doctrinal approaches to the substantive protection of rights provides greater opportunities to address the more pressing issues facing vulnerable older people in society. Whilst much has been written about individuals who lack capacity and the relationship between a rights approach and best interests tests, we primarily address older people who retain capacity but are nonetheless vulnerable as a result of illness, poverty, isolation or simply extreme old age.

Healthcare scandals in the NHS: crime and punishment

The Francis Report into failures of care at Mid Staffordshire NHS Foundation Trust Hospital documented a series of ‘shocking’ systematic failings in healthcare that left patients routinely neglected, humiliated and in pain as the Trust focused on cutting costs and hitting government targets. At present, the criminal law in England plays a limited role in calling healthcare professionals to account for failures in care. Normally, only if a gross error leads to death will a doctor or nurse face the prospect of prosecution. Doctors and nurses caring for patients under the Mental Health Act 1983 and the Mental Capacity Act 2005 may however be prosecuted for wilful neglect of a patient. In the light of the Francis Report, this article considers whether the criminal offence of wilful neglect should be extended to a broader healthcare setting and not confined to mental healthcare.

Not so new directions in the law of consent? Examining Montgomery v Lanarkshire Health Board

This paper examines the UK Supreme Court decision in Montgomery v Lanarkshire Health Board, which deals with consent and information disclosure in medical treatment and care. It signaled a move away from a ‘doctor knows best’ approach to one that focuses on disclosing information to which particular patients would attach significance. Notwithstanding concerns about increased litigation and loss of professional autonomy, the reality is that the decision will make little difference to healthcare practice and consent in the UK. The Supreme Court has endorsed a view that most lawyers and doctors thought already prevailed, and it reflects the General Medical Councils guidance on the issue of consent in any case. Given recent healthcare scandals in the National Health Service (NHS), the Supreme Courts legal recognition of the importance of recognizing patient autonomy in disclosing risks about medical treatment and care is a welcome development.

Exploitation and enrichment: the paradox of medical experimentation

Modern medicine is built on a long history of medical experimentation. Experiments in the past often exploited more vulnerable patients. Questionable ethics litter the history of medicine. Without such experiments, however, millions of lives would be forfeited. This paper asks whether all the “unethical” experiments of the past were unjustifiable, and do we still exploit the poorer members of the community today? It concludes by wondering if Harris is right in his advocacy of a moral duty to participate in medical research.

Inforrned Consent to Surgery

This article considers how far the question of how much a patient ought to be told before agreeing to surgery is in law a matter entirely for the unfettered clinical judgment of his doctors. Only potential civil liability is discussed. It is axiomatic that surgery carried out without consent and where no other justification is present is unlawful. A battery is committed by the surgeon and damages will be payable without proof of injury.