Medical Law: Text, Cases, and Materials

Product Information

causes people to underestimate their likelihood of negative events, to overestimate the likelihood of positive events, and to be overly confident in each of these erroneous judgments. It also distorts people’s reactions to explicit and accurate probabilistic information. 59 Yeah, it would be much clearer for everyone what the boundaries are. I know that because you can’t offer not only compensation but even gifts, like technically you can’t even give them a bunch of flowers. In our study, potential reproductive travellers had sought peer-to-peer information, advice and support from fellow members of internet forums and Facebook groups. This often involves users requesting information about other people’s experiences at specific overseas’ clinics or agencies, which fellow forum-users will answer. 48 As Tom says: Of course, there are multiple and significant differences between information disclosures which are made before a consumer enters into a contract with a retailer, and the information patients receive before they give consent to medical treatment. Consenting to surgery is indubitably not like buying a new phone. Doctors (and other healthcare professionals) owe professional obligations towards their patients which are unlike retailers’ contractual duties towards their customers. Information disclosures to consumers are also standardised, whereas doctors are under a duty to tailor information to the needs of the individual patient. Kai Möller 'Male and Female Genital Cutting: Between the Best Interest of the Child and Genital Mutilation' Oxford Journal of Legal Studies[online first]

Seroxat and the suppression of clinical trial data: regulatory failure and the uses of legal ambiguity' Journal of Medical Ethics 2009;35:107-112 (with L. McGoey)The donation of eggs for research and the rise of neopaternalism' in M Freeman (ed) Law and Bioethics (Oxford UP: 2008) 499-527 In the UK’s ‘altruistic only’ system, it is an offence for anyone other than the surrogate and the intended parents to negotiate a surrogacy arrangement ‘on a commercial basis’, and it is a criminal offence for intended parents, surrogates and agencies to advertise their willingness to participate in or facilitate surrogacy. As a result, as McFarlane J explained in Re G (Surrogacy: Foreign Domicile), 30 the role of facilitating surrogacy arrangements has traditionally been left to ‘groups of well-meaning amateurs’. If the mischief to which the ban on commercial involvement is directed is the prevention of exploitation, the evidence is by no means clear that this is best achieved by discouraging professional agencies’ involvement in surrogacy. On the contrary, as Natalie Gamble has explained: In this journal, Arvind and McMahon have drawn attention to one way in which the judgment in Montgomery, in fact, diverges from the GMC’s partnership model of decision making. 8 Lords Kerr and Reed pointed to the increasing tendency to regard patients as rights holders, and ‘as consumers exercising choices’, 9 to whom what looks like the principle of caveat emptor might sometimes apply: Provides a clear and accessible analysis of the various ways in which human reproduction is regulated. A comprehensive exposition of the law relating to birth control, abortion, pregnancy, childbirth, surrogacy and assisted conception is accompanied by an exploration of some of the complex ethical dilemmas that emerge when one of the most intimate areas of human life is subjected to regulatory control. Throughout the book, two principal themes recur. First, particular emphasis is placed upon the special difficulties that arise in regulating new technological intervention in all aspects of the reproductive process. Second, the concept of reproductive autonomy is both interrogated and defended. Winner of the 2002 Society of Legal Scholars’ Annual Prize for Outstanding Legal Scholarship by a Young Legal Scholar.

Research emerging from the UK and Australia suggests a number of common threads, which make them useful comparators when developing responses to CBR. In both the UK and Australia, people who travel abroad for reproductive treatment may have multiple reasons for doing so, but as both countries provide high quality IVF treatment (with varying degrees of State subsidy) and can broadly be characterised as liberal in their access, 14 our residents may be less likely to be motivated primarily by treatment exclusions or cost considerations.

Medical Law: Text, Cases, and Materials (6th edn)

Jill Peay'An awkward fit: offenders with mental disabilities in a system of criminal justice' in M. Bosworth. C. Hoyle and L.Zedner (eds) (2016) Changing Contours of Criminal Justice: Research, Politics and Policy(Oxford: OUP, 2016) There are multiple differences between pre-contractual information disclosures to consumers and the process of gaining a patient’s informed consent to medical treatment. First, as Tallis explained in the context of a debate over whether patients should be redefined as customers: An underlying regulatory assumption is often that treatment at home is ‘better’ than the international alternatives. Implicit here is the premise that the law will best protect patients through discouraging international travel. Here, the patient experience diverges. It is clear that patients paying for treatment overseas feel as though they are more in control of their treatment, and that, in contrast to their experience of domestic fertility services, they do not have to be grateful for what they receive. Indeed, in many of our interviews patients have praised the standard of care they received overseas, considering it superior to that available at home. Opting out of local, regulated services is not necessarily always an unwelcome last resort then, but may have positive advantages for some patients. If this is the case, we should be interested in listening to what patients say is ‘better’ about treatment overseas, rather than just dismissing their accounts as wishful thinking. It is not irrational, or irrelevant to seek assurances that the decision will be made in a reasonable way, and the disclosure of information can provide this kind of assurance. That is, a patient can want to be assured that a good decision will be made (by someone else) without wanting to make that decision herself. 107

Medical decisions may also be more difficult than the decision to buy a new product, involving, as Epstein puts it, ‘a series of complex trade-offs’: One is I knew that technically by the law of New South Wales, we were breaking that law. [Another parent] kind of put my feelings in that regard at ease in saying "well, if they arrest you for it, they’re going to arrest hundreds of other people who have done exactly the same thing that you’re thinking of doing", which made me feel better about being more open about it. Medical Lawwas awarded first prize in the British Medical Association's ‘Basis of Medicine’ Book Awards, 2017. There is also a mismatch between the view that healthcare professionals have ‘a key role to play in ‘educating’ people about possible risks’, 55 and the fact that healthcare professionals are seldom the first port of call for information. If people seek out information via Google, Facebook, and internet chatrooms, there may be little opportunity for clinicians to educate them about risks and potential pitfalls, a problem which is, as we see in the following section, exacerbated by domestic laws which criminalise CBR, and hence deter patients from incriminating themselves in front of healthcare professionals. V. THE ROLE OF DOMESTIC REPRODUCTIVE SERVICE PROVIDERS

Abstract

Coverage of the proposals set out in the Law Commissions' consultation on reform of the law on surrogacy I think also a con of the altruistic system in general is that a really sort of fuzzy line of what can and can’t be considered a surrogacy expense. So you’re always sort of worrying like oh am I breaking the law by reimbursing this. There’s no real sort of set list of what you can and can’t pay for and I think that causes anxiety for surrogates as well. Thirdly, the purpose of pre-contractual disclosures may be different from medical disclosures in two important ways. First, although, as Howells points out, ‘regulatory policy is no longer fixated with the idea of a malevolent trader trying to con consumers but, rather, focuses on the asymmetries of information between trader and consumer’, 33 retailers are nevertheless trying to sell their products and services to consumers. If retailers are under an obligation to disclose certain information to potential consumers, they may deliberately include it in their ‘small print’ terms and conditions, which they know are seldom read. 34 With I Glenn Cohen, ‘Introduction to the Right to Procreate and Reproductive Technologies’ in Tamara Hervey and David Orentlicher (eds) The Oxford Handbook of Comparative Health Law (Oxford UP, 2020)

Jill Peay 'Mental incapacity and criminal liability: Redrawing the fault lines?' International Journal of Law and Psychiatry40 (2015) pp.25-35 As a result of these multiple differences, there are good reasons to be cautious about drawing too close an analogy between patients and consumers in the context of information disclosure. Of course, the people who may struggle to understand and use the disclosures that they receive as consumers are the same people who receive information from healthcare professionals when they are patients. But, as patients, the information they receive will be more tailored to their needs than the information they receive as consumers, and they will have an opportunity to talk to a specialist, who is furthermore obliged to make their care her first concern. Patients giving informed consent to medical treatment may therefore receive more useful information than consumers, and they will be able to place more trust in the information provider. As we see in the following section, however, contract and consumer law scholars do not tend to attribute consumers’ failure to understand and use information disclosures to the fact that information is either standardised or comes from an untrustworthy source. III. INFORMATION DISCLOSURES TO CONSUMERSLike Lachlan, Lauren, another interviewee involved in a surrogacy arrangement in Australia, expressed a desire to pay her surrogate, and an anxiety about the ‘fuzzy’ definition of expenses in Australia: I think I just really liked the way — I think we have covered this off before as well, but the agency is very respectful to the surrogate in what they call the fourth trimester, meaning, dealing with her effectively and caring — in a caring way about the fact that — how’s she’s going to feel post separation after the birth. I think for us, it’s really important to have a sense that we’re doing the right thing and that we’re not exploiting anyone. Assisted Conception and Surrogacy in the United Kingdom’ in ‘Assisted Conception and Surrogacy in the United Kingdom’ in J Eekelaar and R George (eds) Routledge Handbook of Family Law and Policy (Routledge, 2020) 187-199 For librarians and administrators, your personal account also provides access to institutional account management. Here you will find options to view and activate subscriptions, manage institutional settings and access options, access usage statistics, and more.