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Preview: Contemporary Issues in Law

Contemporary Issues in Law



Volume 7, Issue 3, 2005



Published: Thu, 26 Oct 2006 14:19:32 EST

 



DEATH, DYING AND THE DOCTOR: A DILEMMA AT THE BEDSIDE

Thu, 26 Oct 2006 14:19:32 EST

Volume 7, Issue 3, 2005 p.211
Advances in technology and developments in medical practice now enable a dying person to be kept alive for longer than ever before. Patients are less inclined to unquestioningly follow medical advice and a rights based culture has resulted in a tension between the norm of physician beneficence and the patients' right to make an autonomous choice for medical care. This is considered against the backdrop of the first instance decision in the case of Burke v General Medical Council [2004] EWHC 1879 in which the claimant expressed a wish for articicial nutrition and hydration during the final stages of life, even though there may be no medical benefit from this intervention for him. The status of an advance directive requiring (rather than refusing) treatment, the determination of best interests in relation to the incompetent patient and the concept of medically futile treatment and its provision are examined against the framework of current law, particularly in relation to a rights based discourse founded onthe interaction between articles 2, 3 and 8 of the European Convention of Human Rights. It is suggested that the complexities inherent in these issues require a tripartite balance between patient autonomy, physician beneficence as well as societal norms, values and expectations. Clinical judgment and patient choice are both intrinsic interests of society. A model is proposed that may be applied in the event of discordance between these interests thereby offering a possible resolution to the dilemma at the bedside.



FATAL PURPOSES: A GEWIRTHIAN ANALYSIS OF THE'RIGHT TO DIE' IN ENGLISH LAW

Thu, 26 Oct 2006 14:19:32 EST

Volume 7, Issue 3, 2005 p.242
What may be termed the 'right to die' has come before the English courts in two recent cases. Dianne Pretty failed to establish a right to be assisted in her suicide, while Ms B successfully advanced a right to have her artificial ventilation withdrawn. This article suggests that both cases concerned the 'right to die', although they yielded these different legal results. The first failed because the right to (or sanctity of) life was said to take priority over the patient's right of self-determination, such that the patient's account of the quality of her life was not to be determinative. The second succeeded because self-determination, entailing regard for the patient's account of the quality of her life, was said to take priority over the sanctity of life. These rulings will be evaluated against Alan Gewirth's rights-based account of morality, not least because English law now purports to respect human rights. Gewirth's account should be useful as its focus on 'freedom' and 'well-being' readily echoes the ethical commitments in English law. Unlike English law, however, Gewirth claims to resolve the hierarchy problem, in combining these commitments into a monistic principle. It will be argued that a Gewirthian can, in principle, support a right to die, irrespective of whether death is brought about by active or passive means. However, whether Mrs Pretty's perceived moral right to die should be translated into a legal right remains open to question, so it would seem that the Gewirthian's work is far from finished.



RE-THINKING THE DECISION IN PEARCE

Thu, 26 Oct 2006 14:19:32 EST

Volume 7, Issue 3, 2005 p.264
In relation to medical disclosure cases, the judgment which is demonstrative of the most notable departure from the professional standard of care, is the Court of Appeal's decision in Pearce v United Bristol Healthcare NHS Trust [1998] 48 BMLR 118 (CA). Does this case represent an emergence of a standard of care similar to that advocated by the Australian High Court in Rogers v Whittaker [1992] 67 ALJR 47 (HC of A). The answer to this can be extrapolated from the judgment of Lord Woolf MR. However, as will be seen, this is open to one of two differing interpretations. This paper seeks to analyse the decision in Pearce in a new light. Firstly, a discussion of the Australian prudent patient standard of care is provided for. In turn this is compared to English developments arising out of Pearce and the similarities and differences between the two jurisdictions are highlighted. The article then progresses in examining the academic opinion surrounding the case in order to reach an overall assessment of whether Pearce has actually provided the basis for developing a standard of disclosure, which is grounded in, what the reasonable patient wants to know. It is submitted that when analysed in a broader context, Pearce may no longer be justified as the long awaited saviour of patients' rights that many first envisaged it to be.



CALLING TIME ON ABORTION - A HOPEFUL BEGINNING OR AN UNTIMELY END?

Thu, 26 Oct 2006 14:19:32 EST

Volume 7, Issue 3, 2005 p.281
The emotive subject of the legitimacy of late-term abortion has once again become part of current political debate, echoing earlier sentiments and attempts to reform the current time limits imposed by s1(1)(a) Abortion Act 1967. This time the proposals for reform have been bolstered by graphic imagery of the capabilities of early foetal life, made achievable by technological innovation. This article considers the prevailing arguments on either side of the current debate in the context of recent data pertaining the prevalence of late-term abortion. These statistics are considered against the backdrop of perceived and existing barriers to early abortion. Criteria such as viability and sentience that are invariably used in the current arguments as the basis for reform are evaluated in the light of current scientific knowledge, law and morality. Consideration is given to some of the possible implications of a reduction in the time-limit and questions are raised whether a reduction might represent a retrograde step for women and society. The paper concludes with a brief review of earlier attempts at statutory reform transposed onto the context of the present day debate.



EUTHANASIA AND ASSISTED SUICIDE IN GERMAN LAW

Thu, 26 Oct 2006 14:19:32 EST

Volume 7, Issue 3, 2005 p.301
This paper offers an overview of the law relating to medical treatment at the end of life in the Federal Republic of Germany. After examining the rules dealing with euthanasia (understood widely as encompassing both active and passive conduct by a doctor designed to bring the patient's life to a close), it goes on to look at the related area of assisted suicide. As in England, this is a contentious and fraught field where the development of coherent - and ethically informed - legal principles has been left largely to the courts. In this regard, there are many similarities with the law of England - both in terms of the conceptual categorisation of the cases and the solutions adopted. Nonetheless, some interesting differences are also apparent - in particular, the prima facie more liberal approach taken by Germany law to assisted suicide. The paper concludes by briefly considering what general conclusions might be drawn from a compatative survey of this kind.