Medical Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB medical law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best Medical Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through forty-eight LLB samples from outstanding law students with the highest ...
The following is a more accessible plain text extract of the PDF sample above, taken from our Medical Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Abortion v Contraception – implantation (fertilised egg moves into & attaches itself to the womb) (R (John Smeaton) v Sec of State for Health
Legal Status of Foetus
Not a person but not nothing either
AG Ref (No3 of 1999) – D stabbed a pregnant woman, baby born but died = manslaughter; foetus not a part of mother – relationship special but one of bond and not identity. Foetus = a sui generis organism
No interests warranting legal protection
Can’t be made a ward of court(ReF (in utero))
No rights capable of being protected by others(e.g. father can’t seek injunction to prevent abortion in his name)
Embryo isn’t a person+ has no rights under ECHR
Evans v Amicus – woman not allowed to use b/f’s frozen eggs after they’ve divorced w/out his consent, although otherwise infertile. She had a right under Art 8 to reproduce to be balanced against b/f’s right not to. HFE Authority has a reasonable approach to balancing these – not contrary to ECHR b/c legal certainty & need for public confidence in reproductive services justified it.
Vo v France – French law by not providing for offence of unintentional destruction of foetus wasn’t contrary ti Art 2 ECHR (right to life) but no clear ruling on legal status of foetus
Abortion Law
A crim. offence unless Abortion Act 1967 provides a defence
Offences
S58 OAPA 1861 – administering drugs/using instruments to procure abortion
can be committed by pregnant woman/someone else w/intent to procure miscarriage
s59 OAPA 1861 – supply of drugs, substances, instruments for unlawful abortion
s1 Infant Life Preservation Act 1929 – any person w/intent to destroy life of child capable of being born (28 weeks, unless proven otherwise) by a wilful act causing him to die b/f he exists independent of his mother
Defence
Necessity – available to doc charged w/carrying out or procuring miscarriage + requires that probable consequence of pregnancy was to make woman a physical or mental wreck
Legal Abortion – 4 Requirements
Done under authority of registered med practitioner
In NHS hospital/approved place
2 med practitioners agree on statutory grounds in s1(1)(a) permitting abortion
Can be 2 different grounds
Risk to mental & physical health of the woman/her existing kids
unless pregnancy post 24 weeks
Doc in good faith believes there’s risk of grave permanent injury
Substantial risk child would suffer physical/mental abnormalities as seriously handicapped
No time limit
Serious handicap = assisted/dependent performance
Jepson v CC of West Mercia Police– abortion performed by doc b/c foetus suffered from left clip justified b/c no evidence that doc hadn’t formed a view in good faith that child would be seriously handicapped
Must notify relevant authorities of grounds + method used
Emergency Abortion (s1(4)) – one doc + doesn’t need to be in approved place
Conscientious objection by doc/staff (s4)
Injunctions by TPs to prevent abortion
Rare – difficult to get standing, whether claiming in own right or on behalf of foetus
Challenge brought by AG or CPS + could follow up w/JR
Paton v Trustees of BPAS – father couldn’t obtain injunction to prevent abortion + couldn’t claim on behalf of foetus b/c not a legal person & had no standing
Incompetent Ps
Adults
If it’s in P’s best interests, can abort w/out court order
Unless med opinion is divided or family strongly opposed
Minors
Under 16 – doc can abort w/out parents’ consent if P:
Gillick competent
consented
in her best interests
R (Axon) – mother had no right under HRA 1998 to be informed of daughter’s decision to seek abortion – strong right to confidentiality + public interests concerns re access for youths to docs
Gillick competent + no consent – doc can abort if
Someone w/parental resp. consents
In P’s best interests
Or court order ...
Assessment of 1967 Act
Medicalised model – doc’s judgment is key to legality + v. difficult to show illegality b/c must show doc didn’t think grounds were made out!
Sheldon: if law seeks to protect/entrench any rights, it’s not those of the woman or foetus but of the doctor instead
Act didn’t liberalize but established a more rigorous system of med control over woman’s fertility (Sheldon)
Benefit: doesn’t allow men to challenge legality
Act is surprisingly loose - decisions made in private + no requirement to notify + v. ltd grounds for challenging
In practice - very few obstacles for woman wanting an abortion b/f 24 weeks
Elected/forced C sections
Competent P – can’t be compelled even if risk to life exists
Incompetent P – can be compelled if it’s in her best interests
St George’s Healthcare Trust v S– above
Winnipeg v G– glue sniffer case
Scott: a woman who elects to carry foetus to term isn’t @ the same time undertaking to do whatever is required to protect him/ensure he’s born alive, notwithstanding her moral duty to do so. She can’t be expected to make extraordinary sacrifices.
Abortion (Ethics)
Main schools of thought
Pro life – right to life of unborn child
Pro choice – woman’s right to choose (choice = fundamental aspect of human freedom)
Dworkin’shuman/natural investment mid view - both value sacredness of life but disagree on which aspects: natural investment or human investment (including matters of input & added value)
When is foetus a person?
At conception
For
Entire genetic makeup is complete/ apart from growing, nothing will be added/taken away thereon
Don’t know for sure when life begins so safest to assume it’s at conception
NB: Assumes there’s a clear point @ which personhood begins
NB: Conception isn’t the bright line it’s claimed to be – it occurs over time!
Against
Usual fate of fertilised egg is to die – means majority of people die within first few days
Means IVF + many other forms of contraception are immoral
Mid Ground – even if doesn’t begin @ conception, has moral value on acc of symbolic status as representing the beginning of human life...
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Medical Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB medical law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best Medical Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through forty-eight LLB samples from outstanding law students with the highest ...
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