MEDICAL LAW – Spring term seminars

LW3MED 2023-24

MEDICAL LAW – Spring term seminars

The seminars enable you to engage with the topic and extend your learning. They require advance
preparation and offer the opportunity to do past-exam questions (both problem and essays). You
should be prepared to contribute in the seminar which will give you further feedback on your
understanding and how to approach exam questions. Preparation will also serve you well when you
come to revise and you will be able to critically engage with the debates.

Some of the questions invite targeted reading; you should also read the recommended materials listed
at the end of each set of powerpoints (also consolidated in the general reading list for the term).

SEMINAR 1 – week 4

Consent, capacity and best interests (adults)

Required reading:

Emily Jackson, Medical Law: Text and materials (OUP 2022), Chapters 4 and 5.

Montgomery v Lanarkshire Health Board [2015] UKSC 11

J.Coggon, Mental capacity law, autonomy and best interests: an argument for conceptual and
practical clarity in the court of protection (2016) 24 Medical Law Review 396.

E.Jackson, From ‘doctor knows best’ to dignity: placing adults who lack capacity at the centre
of decisions about their medical treatment (2018) 81 Modern Law Review 247.

J.Montgomery, E.Montgomery, Montgomery on informed consent: an inexpert decision

H.Taylor, What are best interests? A critical evaluation of best interests decision-making in
clinical practice (2016) 24 Medical Law review 176.

Podcasts: On the question of duty on doctors to offer alternative treatment options, listen to
this excellent podcast with John Whitting (now KC): https://audioboom.com/posts/8092723-a-
duty-to-offer-alternatives-with-john-whitting-qc

And on Montgomery more generally: Law Pod UK / Ep. 60: Doctor knows best?
(audioboom.com)

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1. After reading the Supreme Court decision in Montgomery, listen to the podcast ‘Doctor knows
best’. Do you agree that Montgomery adopted the correct approach and that although it was
a long time coming, it is a victory for patient empowerment and autonomy? Or do you agree
with Jonathan and Elsa Montgomery that, ‘[I]t is paradoxical that a ruling supporting the
principle of autonomy could be justified only by disregarding the actual patient's
characteristics and the choices that she had made’?

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Listen to the podcast with John Whitting on whether a doctor’s autonomy is compromised by
a potential duty to offer alternative treatments and how Montgomery may be used to support
such a duty.

2. Peter is 50 years old and last year went into hospital for elective surgery. The surgeon
informed him of the need for surgery and what the surgery would entail. In the consent form
which Peter signed, it stated that the Patient has been warned of the risks of bleeding,
scarring, lack of improvement in his condition and possible internal damage as a result
of surgery. Peter had the operation and was discharged with a patient information sheet
which said that if he experienced ‘any problems’ to call the hospital. A few days after, Peter
was not feeling well and his wife called the hospital to seek advice. It was not clear exactly
why he was unwell and the hospital advised Peter to see his GP. One week later, Peter spoke
with his GP who noted in his patient record that he was suffering from calf pain and
some heart beat irregularity. The next day, Peter was taken to Accident and Emergency
suffering from extreme breathlessness. He was diagnosed with a deep vein thrombosis (DVT),
an outcome commonly known to be a material risk following surgery, although Peter’s
condition did not place him in a high category of risk.

Peter wishes to make a claim in negligence against the Hospital Trust, claiming that had he
been properly informed of the risk of DVT, he would have returned to the hospital when he
first started feeling unwell a few days after the surgery, which would have enabled faster
treatment avoiding the potentially fatal development of the DVT. Advise Peter how a court is
likely to deal with his claim.

3. Wendy is 24 years old, but has the mental age of a seven year old. She has little prospect of
further mental development. She suffers from heavy periods and needs help to cope with
these each month. Wendy is mainly cared for by her mother, Anne. Anne is retired and in poor
health. She is worried that when she becomes unable to look after her, Wendy will have to go
into full-time local authority care. Wendy has stayed in a residential home as a day patient to
introduce her to outside care, but she seems to attract the attentions of certain male patients
and is easily led. Anne is concerned that there is a danger of her becoming pregnant. Wendy
could not understand the meaning of pregnancy, nor could she cope with labour and child
birth. However, Wendy enjoys looking after her dolls and says that she would like to have a
baby of her own. As Anne’s health fails and the time approaches when Wendy may have to
spend more time in the residential unit, Anne worries that Wendy will latch onto anyone who
gives her attention. Her mother thinks she should have a hysterectomy now to avoid both her
periods and the risk of becoming pregnant. She asks her doctor, Dr Partridge, whether
he would be willing to proceed with the operation.

Advise Dr Partridge as to the legal principles governing Anne’s request.

4. ‘[T]he purpose of the best interests test is to consider matters from the patient’s point of view’
(Hale LJ in Aintree University Hospitals Foundation Trust v James [2013] UKSC 67.
John Coggon builds on this to suggest ‘if a patient’s reflectively endorsed view on her interests
is known, legally this should hold equal weight regardless of whether she has capacity or not.’
To what extent is/should the patient’s views or wishes be determinant in deciding whether
treatment of an incapacitous person is lawful? Should there be any difference between
someone who has capacity and someone who does not, as John Coggon questions?

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SEMINAR 2 – week 7

Decision-making for children

Required reading for this seminar:

 Chapter 6 in Emily Jackson, Medical Law, Text and materials (2022) available in Law Trove.

• C.Auckland, I.Goold, Parental rights, best interests and significant harms: who should have the
final say over a child’s medical care? (2019) 78 Cambridge Law Journal 287-323.

• I.Goold, Gresham College Lecture, October 2021:

• T. Callus, “Spanner in the Works or Cogs in a Wheel? Parents and Decision Making for Critically
Ill Young Children,” in C. Danbury and C. Newdick, Law and Ethics in Intensive Care (OUP, 2d
ed, 2020).

• S.Gilmore and J. Herring, “No is the Hardest Word: Consent and Children’s Autonomy” [2011]
CFLQ 3
• McFarlane, J (as was) Mental Capacity: One Standard for All Ages [2011] Family Law 479.

• Quincy Bell and Mrs A v The Tavistock and Portman NHS Foundation Trust and
others [2021] EWCA Civ 1363

• Great Ormond Street Hospital v Yates and Gard [2017] EWHC 972 (Fam) (first instance April
2017 – confirmed after appeal to Court of Appeal, Supreme Court and European Court of
Human Rights and remitted back to High Court in July 2017: [2017] EWHC 1909 (Fam)).

• Tafida Raqeeb v Barts NHS Foundation Trust [2019] EWHC 2530 (Fam)

1. ‘We suggest that prima facie decision-making authority for a child's medical care should rest
with the child's parents and not be too easily over-ridden. This is because many decisions
about children are not solely medical decisions, but value decisions and taking respect for
difference seriously means being committed to promoting a plurality of values. Where the
decision about a child rests on these value-judgements, and where there is space for
reasonable disagreement, there are good reasons to think that parents, due to their particular
relationship to the child, should have the final say over a child's care unless there is a sufficient
reason for them to be overridden. We argue for a “significant harm” threshold, with parental
authority yielding to the courts only when the parents' decision carries a serious risk of
“significant harm” to the child. […] We select this threshold because it better reflects the
boundaries between our private lives and those areas into which the state can rightly
intervene, is the most ethically justified and strikes the most appropriate balance between
parental authority and protecting the vulnerable.’ C.Auckland, I.Goold, Parental rights, best
interests and significant harms: who should have the final say over a child’s medical care?
(2019) 78 Cambridge Law Journal 287-323.

In the light of this statement, and cases such as Charlie Gard (especially before the Court of
Appeal: [2017] EWCA Civ 410), Tafida Raqeeb ([2019] EWHC 2530 (Fam), critically assess the

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arguments put forward by Auckland and Goold for treating young children. Do you agree? Or
does the current law continue to adopt a paternalistic approach by imposing outcomes for sick
young children, irrespective of the parents’ wishes?

2. Amanda is a 14 year old girl who is three months pregnant. She and the boy by whom she
became pregnant have now ended their relationship. She has suffered clinical depression for
some years but her condition, although fragile, is managed reasonably well by medication,
although she still suffers periodic bouts of depression. Her parents have spoken to Amanda's
GP and all agree that the pregnancy poses a serious risk to Amanda's mental health and ought
to be terminated. In addition, her parents say that she would be wholly incapable of bringing
up a child and that they do not have enough money to support another child themselves.
However, Amanda has resolutely refused to contemplate an abortion. She says she wants the
baby and is looking forward to becoming a mother. In these circumstances, the parents are
willing to consent to Amanda having an abortion in the Barkshire Hospital NHS Trust.

Advise the hospital.

3. ‘The man in the street, and I would suggest many lawyers in the street, would be forgiven for
understanding that a Gillick competent child who is sufficiently mature to give consent to a
particular medical treatment would, almost as night follows day, have the competence to
refuse consent to that treatment and to have that refusal respected by those in authority over
her.’ McFarlane, J Mental Capacity: One Standard for All Ages [2011] Family Law 479.

Yet, ‘[n]o minor of whatever age has power by refusing consent to treatment to override a
consent to treatment by someone who has parental responsibility for the minor and a
fortiori a consent by the court.’ Re W (a Minor) (Medical Treatment: Court's
Jurisdiction) [1993] Fam 64, per Lord Donaldson MR.

Critically discuss the current legal position and challenges posed by treating adolescents, the
role of parents and particular considerations in situations of life and death.

4. Ali is seventeen years old and suffers from a learning disability and autism. He has the mental
age of a seven-year-old. He has been attending a local authority day centre each day, but
returns home to sleep. His behaviour has become increasingly difficult for the day centre staff
to deal with and the local authority is recommending that he be accommodated in a
residential unit. When Ali visited the residential unit, he said he did not want to live there; his
parents would therefore like more help to look after him at home. There are no cost
implications for this different care package, but the local authority do not believe that living at
home is the most suitable care option for Ali. His parents on the other hand, think they should
have the final say as Ali is still a minor. They also claim that despite Ali’s condition, his wishes
and feeling are an important consideration and that Ali has said that he wants to be looked
after at home.

Advise Ali’s parents as to the legal considerations in identifying the most appropriate care for
Ali.

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WEEK 10 - SEMINAR 3 – END-OF-LIFE DECISION-MAKING

As well as the targeted reading attached to the questions, also read the recommended
reading from the lecture slides, including for a general overview, E.Jackson, Medical Law,
Text, cases and materials – Assisted Dying, chapter 17 pp 933 et seq; and on advance
decisions see pp 302-310.

1. Read C.Auckland, Protecting me from my directive: ensuring appropriate safeguards

‘[…] it is clear that underpinning the defence of advance directives is the belief that directives
respect, and give effect to, a person’s precedent autonomy. As such, a directive may only be
justified in so far as it represents an autonomous choice. In the absence of this the directive
loses its moral authority, and therefore there can be no ethical basis for upholding it. Given
the inherent nature of advance directives involves making a decision in anticipation of a
whole range of possible circumstances, conditions and treatment options, a number of
potential concerns may be raised about whether the choices embodied in directives can be
truly autonomous, and therefore warrant being upheld.’ (C. Auckland)

 With reference to case law and if relevant, statute, critically examine the extent to
which individual autonomy is determinative in treatment decision making of a patient
at the end-of-life (including consideration of advance decisions).
 Do you agree with Auckland that there is a need for greater medical professional
involvement with ADs?

2. Patricia is 70 years old and is relatively active and in good health. Her sister, Reima,
suffered a stroke last year and was left in a minimally conscious state (MCS). At the
time of her sister’s stroke, Patricia discussed with her family what she would want to
happen if she were affected like her sister. She said that if she suffered an irreversible
stroke and was unable to participate fully in life, then she would like to refuse life-
sustaining treatment, including refusing artificial nutrition and hydration. She
mentioned this to her children, and said she planned to write a ‘living will’ but has not
discussed it with them since. A few weeks ago, she visited Reima in hospital and
discussed with the treating team what her sister would have wanted. She said that
Reima was very religious and would not have wanted to be starved to death. Her
doctors have said that further treatment, including artificial nutrition and hydration is
of no benefit to Reima and they suggested to Patricia that it would be kinder to
withdraw treatment from her sister to let her slip away. On leaving the hospital,
Patricia was involved in a serious road accident. She is unconscious with serious
injuries and needs to be admitted to intensive care. Her children have been informed

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and they indicated to the doctors that her mother had said she would not want to be
kept alive. As the only living relatives of Patricia’s sister, the treating team also want to
talk with them about Reima’s situation. The children think that Reima would not want
to be kept alive in a MCS.

Advise the hospital Trust as to the legal implications with respect to Patricia and
Reima’s treatment.

3. How) is it possible to reconcile the outcome in Mrs N v M and Bury CCG [2015]
EWCOP 76 and in R (Nicklinson) v Ministry of Justice [2014] UKSC 38 as illustrated in
the following quotes:
Mrs N v M and Bury CCG [2015] EWCOP 76:
‘I am left with little doubt that Mrs. N would have been appalled to contemplate the early
pain, increasing dependency and remorseless degeneration that has now characterised her
life for so long. I have no difficulty in accepting the family’s view that she would not wish to
continue as she is. More than that, she would have wished to have discontinued her
treatment some considerable time ago.’ at [60].
And
R (Nicklinson) v Ministry of Justice [2014] UKSC 38:
‘I have wanted my life to end since 2007 so it is not a passing whim. I know consent makes no
difference but the doctor has it anyway. Legal arguments are fine but they should not forget
that a life is affected by the decision they come to. A decision going against me condemns
me to a life of increasing misery…[14].
And note:
Airedale NHS Trust v Bland [1993] 1 All ER 821
‘it is not lawful for a doctor to administer a drug to his patient to bring about his death,
even though that course is prompted by a humanitarian desire to end his suffering,
however great that suffering may be: see R v Cox. So to act is to cross the Rubicon which
runs between on the one hand the care of the living patient and the other hand euthanasia
– actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at
common law.’ per Lord Goff, at [865].

 Are the distinctions between passive withdrawal of treatment, the doctrine of double
effect, and active euthanasia convincing?

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4. Read: N. Papadopoulou, Dying with Assistance: The Call for an Inquiry, the Power of a
declaration, the role of evidence (2022) 30 (1) Medical Law Review Pages 81–109.

Watch Prof Imogen Goold give a Gresham College lecture on assisted dying:
https://www.gresham.ac.uk/watch-now/voluntary-dying

 What are the arguments for and against reforming the law on assisted dying?
We will have a debate between arguments for, and against, reform of the law relating to
assisted dying. Be ready to argue for both sides, as well as identifying your own opinion
and what you would recommend and why?
There has been further media attention in 2023 generated by celebrities such as Prue
Leith and Esther Rantzen. MPs of all political persuasion have aired views for and against
reform. We are waiting for the House of Commons Health and Social Care Committee to
conclude their Report, but the website contains some additional evidence which you may
find of interest: https://committees.parliament.uk/work/6906/assisted-dyingassisted-
suicide/news/).
Documentary: https://www.channel4.com/programmes/prue-and-dannys-death-road-trip