Suzanne Ost

Children at Risk: Legal and Societal Perceptions of the Potential Threat that the Possession of Child Pornography Poses to Society

This article examines legal and social discourses surrounding the phenomenon of child pornography, considering the legal responses to child pornography (particularly when an individual is found to be in possession of such material), and the way in which such material, the child, and the possessor of child pornography are socially constructed. The article raises the question of whether there has been a moral panic regarding child pornography and the possession of such material, but also considers whether there are real reasons to consider that the possession of child pornography should remain illegal. Research studies which aim to establish the existence of a causal link between possessing child pornography and the act of committing child sexual abuse are examined, as is the argument that criminalizing the possession of child pornography reduces the market for such material. Finally, there is an analysis of the possible impact of social constructions of the child as innocent.

Getting to Grips with Sexual Grooming? The New Offence under the Sexual Offences Act 2003

In recent years, there has been increased societal concern regarding the dangers posed to children by sexual abuse and other related acts. For the main part, this article examines the new offence of meeting a child following sexual grooming under Section 15 of the Sexual Offences Act 2003. I will address the question of whether the introduction of this offence is likely to meet the Governments aim of providing greater protection for children against behaviour associated with sexual abuse. In particular, I will consider how difficult it will be to prove the existence of a harmful ulterior intent in order to make out the offence and why the Government has opted to create this specific offence rather than utilise the existing law of criminal attempt. I will argue that the new offence is a step in the right direction and that the current protection offered to children will be significantly extended by its introduction.

The de-medicalisation of assisted dying: is a less medicalised model the way forward?

Although assisted dying has been most commonly presented within a medicalised framework, the notion of de-medicalisation is employed in this paper to suggest that there are emerging models of assisted dying in which some medical aspects assumed to be an integral part of the phenomenon are both challenged and diminished. The paper considers cases where relatives have facilitated a loved ones assisted suicide abroad, cases of assisted death in which the assistor in the actual suicide act is a non-medic, and the growing debate surrounding non-medical grounds for desiring death. In evaluating the potential impact of partial de-medicalisation on the assisted dying debate, the argument presented is that whilst a de-medicalised model could well contribute to a richer understanding of assisted dying and a better death for the person who is assisted, there are cogent reasons to retain some aspects of the medicalised model and that a completely de-medicalised model of assisted dying is unrealistic.

WHEN SHOULD PRECAUTION PREVAIL? INTERESTS IN (PUBLIC) HEALTH, THE RISK OF HARM AND XENOTRANSPLANTATION

Xenotransplantation is an example of a developing biotechnology which highlights three differing interests in the health of the public; a specific interest in enhancing the health of individuals who require a particular procedure or treatment, a wider interest in protecting the health of us all by avoiding introducing biotechnologies which risk the health of the public, and a public interest in advancing medical knowledge and treatment. Here we explore how matters of private benefit and public risk can be appropriately reconciled and consider whether ideas of public health should take a more central role when deciding whether clinical xenotransplantation should proceed. The risks of xenotransplantation are not certain but the nature of the harm to individual and public health could be severe. The concept of risk is central to our analysis as xenotransplantation threatens potential future harm as well as possible benefit. We argue that it is sometimes legally and ethically necessary for the state to act in advance to protect the health of the public, and that xenotransplantation is such a case. In reaching this conclusion we adopt a precautionary approach; an approach which we modify by Mill’s harm principle.

Physician-assisted dying outlaws: self-appointed death in the Netherlands

No law in any jurisdiction that permits physician assisted dying offers individuals a medically assisted death without the need to comply with certain criteria. The Netherlands is no exception. There is evidence to suggest that physicians are averse to providing an assisted death even when the Dutch ‘due care criteria’ have been met and the unbearable pain and suffering requirement is especially difficult to satisfy. Some individuals with an enduring desire to die who do not meet the ‘due care’ criteria under the Dutch legislation turn to other means of achieving a self-appointed death. This paper explores two alternative methods of securing a self-determined death (an assisted death involving lay assistors or a self-hastened death by stopping eating and drinking), and raises the question of how far the law should recognise autonomy in the context of physician assisted death.

Memories of Ken Mason

John Kenyon Mason (19 December 1919-26 January 2017), CBE, MD, LLD, FRCPath, DMJ, FRCPE, FRSE, and known as Ken Mason to us all, was Regius Professor of Forensic Medicine at the University of Edinburgh from 1973-1985 and thereafter Emeritus Professor of Forensic Medicine and Honorary Fellow in the School of Law at the University of Edinburgh. A formal obituary to Professor Mason is published in the Scotsman (http://www.scotsman.com/news/obituaries/obituary-professor-ken-mason-medical-jurisprudence-pioneer-1-4357181). We offer some personal tributes to our friend and colleague.

BREACHING THE SEXUAL BOUNDARIES IN THE DOCTOR–PATIENT RELATIONSHIP: SHOULD ENGLISH LAW RECOGNISE FIDUCIARY DUTIES?

In this article, I argue that sexual exploitation in the doctor-patient relationship would be dealt with more appropriately by the law in England and Wales on the basis of a breach of fiduciary duty. Three different types of sexual boundary breaches are discussed, and the particular focus is on breaches where the patients consent is obtained through inducement. I contend that current avenues of redress do not clearly catch this behaviour and, moreover, they fail to capture the essence of the wrong committed by the doctor-the knowing breach of trust for self-gain-and the calculated way in which consent is induced. Finally, I demonstrate that the fiduciary approach is compatible with the contemporary pro-patient autonomy model of the doctor-patient relationship.

Does the theoretical framework change the legal end result for mature minors refusing medical treatment or creating self-generated pornography?

The status that is and should be afforded to decisions made by those under 18 has been much debated, particularly in the context of health care. Ideas of rights, autonomy and the concept of best interests have been explored, and there appears to be an underlying concern that if minors are recognised as ‘fully’ autonomous individuals with legally enforceable rights, then this would conflict with the best interests (welfare) principle as espoused in the Children Act 1989. Similar concerns are identifiable with regards to provisions designed to protect children from sexual exploitation, which are largely framed around protection rather than rights. Concepts of vulnerability and exploitation are predominant in this context, making it easier to perceive minors as being in need of protection rather than as individuals with autonomy deserving of respect. In this article, we consider some of the concerns raised and expose the tensions that surround the decision-making (cap)ability of mature minors (those aged 16 and 17), and the implications for these adolescents. We explore whether the dominant paradigms of best interests and protectionism limit English law’s recognition of mature minors’ autonomy in two situations; refusing treatment and creating self-generated pornography. We thus test whether a ‘liberal’ position of recognising mature minors’ autonomy can be maintained in the face of potential harm to them.

“Consensual” sexual activity between doctors and patients : a matter for the Criminal Law?

This chapter offers the beginnings of an exploration of what counts as exploitative sexual activity between a doctor and patient and of what role (if any) the criminal law should play. The issue of maintaining sexual boundaries between health care professionals and patients has become a significant matter of concern in recent years following several high profile scandals. Ethical and regulatory guidance takes the position that any engagement in sexual activity with a patient by a doctor is inappropriate and damaging. In this chapter, we first explore why this might be the case and whether sexual activity between doctor and patient is always exploitative. We consider whether consent can ever really freely be given in the context of this relationship. Does the imbalance of power between doctor and patient mean that the health care professional always effectively thwarts the patient’s capacity to give free consent to sexual activity? Secondly, we assess whether criminal law should be utilised to deal with cases where sexual activity with a patient amounts to wrongful, harmful behaviour on the part of the doctor.

When criminal law encounters bioethics:: a case of tensions and incompatibilities or an apt forum for resolving ethical conflict?’

Whilst health care professionals and scientists have been subject to civil law and professional regulation for some time, in this jurisdiction at least, questions of medical and scientific malpractice and cases involving bioethical dilemmas are increasingly coming before the criminal courts. This growing trend seems to have proceeded in the absence of very much at all by way of legal scrutiny, or jurisprudential analysis. Of course, some may consider the use of the criminal law as a forum to resolve bioethical dilemmas as both inevitable and wholly appropriate. Medical practice, biotechnologies and scientific research all have a major impact on our lives and whilst they can bring and have brought us great benefits, we do not have to look too far back into the past to recall the atrocities that have been committed in the name of medical and scientific advancement. This volume offers balanced arguments that will help the reader form a reasoned view on the ethical legitimacy of the invocation and use of the criminal law to regulate medical practice and issues of bioethics. It aims to shed light on the question of who should define what constitutes ethical, and thus lawful medical practice? The judges, the doctors and scientists or someone else? To this end, it analyses how effectively the criminal justice system can, and does operate as a forum for resolving ethical conflict in the delivery of health care? Key questions that are addressed include: How does the criminal law regulate controversial bioethical areas? Is the use of the criminal law in these areas appropriate or desirable? What effect, positive or negative does the use of the criminal law have when regulating bioethical conflict? Can the law accommodate morally controversy? The volume explores criminal law in theory and in practice and the broad field of ‘bioethics’ rather than the narrower terrain of medical ethics. Whilst numerous chapters focus on criminal law within the specific context of health care, others address scientific research and biotechnologies.