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Preview: Medical Law Review - Advance Access

Medical Law Review Advance Access

Published: Fri, 17 Nov 2017 00:00:00 GMT

Last Build Date: Fri, 17 Nov 2017 07:46:07 GMT


Autonomy, Affinity, and the Assessment of Damages: Acb v Thomson Medical Pte Ltd [2017] SGCA 20 and Shaw v Kovak [2017] EWCA Civ 1028


In ACB v Thomson Medical Pte Ltd [2017] SGCA 20 and Shaw v Kovak [2017] EWCA Civ 1028, the idea that ‘lost autonomy’ should be recognised as a new form of actionable damage in the tort of negligence was rejected in Singapore and England, respectively. This, it will be argued, was the correct outcome. Protecting an interest in autonomy via the tort of negligence would undermine the coherence of that tort. In ACB, however, a new, different, form of damage was recognised: loss of ‘genetic affinity’. This commentary will discuss some problems that protecting an interest in ‘genetic affinity’ raises before critiquing the approach to assessing damages in ACB.

‘…What God and the Angels Know of Us?’ Character, Autonomy, and Best Interests in Minimally Conscious State


Determining the best interests of incapacitated patients has been observed to be an opaque area of the law, and this is no less so in decisions about the (non-)treatment of patients in the minimally conscious state. A systematic examination of the way best interests are used in judgments relating to this population suggests that narratives involving the character of the patient frequently form an important plank of judicial reasoning. Since insights into the concept of best interests may be gained by an engagement with the philosophy of well-being, I identify the court’s character-based approach with perfectionist theories of well-being. These use human nature to furnish an objective list of abilities needed for human flourishing. Guided by the Mental Capacity Act (MCA), this list becomes focused primarily on autonomy. Incapacitated patients are assumed to have wishes, but to lack agency. Judges search for these wishes in narratives about the patient and supply the means to exercise these wishes. This analysis suggests three concerns about the court’s approach: first, by placing so great a weight on autonomy, the law offers an impoverished account of human nature; secondly, adversarial law encourages partial determinations of character, and this raises concerns about whether the courts are equipped to explore the complexities of character narratives; and, thirdly, experimental psychology indicates character is not as predictable as an assessment under MCA requires. While character narratives may unburden decision-makers, this analysis suggests the limits of autonomy may have been exceeded in this area of the law.

When Can the Child Speak for Herself? The Limits of Parental Consent in Data Protection Law for Health Research


Draft regulatory guidance suggests that if the processing of a child’s personal data begins with the consent of a parent, then there is a need to find and defend an enduring consent through the child’s growing capacity and on to their maturity. We consider the implications for health research of the UK Information Commissioner’s Office’s (ICO) suggestion that the relevant test for maturity is the Gillick test, originally developed in the context of medical treatment. Noting the significance of the welfare principle to this test, we examine the implications for the responsibilities of a parent to act as proxy for their child. We argue, contrary to draft ICO guidance, that a data controller might legitimately continue to rely upon parental consent as a legal basis for processing after a child is old enough to provide her own consent. Nevertheless, we conclude that data controllers should develop strategies to seek fresh consent from children as soon as practicable after the data controller has reason to believe they are mature enough to consent independently. Techniques for effective communication, recommended to address challenges associated with Big Data analytics, might have a role here in addressing the dynamic relationship between data subject and processing. Ultimately, we suggest that fair and lawful processing of a child’s data will be dependent upon data controllers taking seriously the truism that consent is ongoing, rather than a one-time event: the core associated responsibility is to continue to communicate with a data subject regarding the processing of personal data.

Tamara K. Hervey, Calum Alasdair Young, and Louise E. Bishop (eds), Research Handbook on EU Health Law and Policy


HerveyTamara K., Calum Alasdair Young, and BishopLouise E. (eds), Research Handbook on EU Health Law and Policy, Edward Elgar, 2017, Hardback, 640 pp., £175.00, ISBN 9781785364716