Property in Human Biomaterials: Separating Persons & Things?
Oxford Journal of Legal Studies, forthcoming.
The traditional ‘no property’ approach of the law to human biomaterials has long been punctured by exceptions.... more The traditional ‘no property’ approach of the law to human biomaterials has long been punctured by exceptions. Developments in the jurisprudence of property in human tissue in English law and beyond demonstrate that a variety of tissues are capable of being subject to proprietary considerations. Further, amongst commentators there are few who would deny, given biotechnological advances, that such materials can be considered thus. Yet where commentators do admit human biomaterials into the realm of property it is often done with an emphasis on some sort of separation from the person who is the source of those materials. One line of argument suggests that there is a difference between persons and things which constitutes a morally justifiable distinction when it comes to property. This article examines whether the idea of separability can do the work of demarcating those objects that ought to be considered property from those that ought not to be. It argues that, despite the entailment of a separability criterion inherent in both the statutory and common law positions, and the support given to this by some commentators, it is philosophically problematic as the basis for delineating property in human tissue and other biomaterials.
Child-Friendly Healthcare: Delivering on the Right to Be Heard
Co-authored with Ursula Kilkelly, published in Medical Law Review, Vol. 19, pp. 27-54, Winter 2011
Under the United Nations Convention on the Rights of the Child (CRC), children capable of forming views have the right... more Under the United Nations Convention on the Rights of the Child (CRC), children capable of forming views have the right to express those views and have them taken into account in all decisions that affect them. Attention has only focused recently on the child’s right to be heard in the context of healthcare decision-making. This article addresses this issue from both a legal and a medical perspective. It begins by considering what participation means and by differentiating between autonomous decision-making by children and children’s participation in decision-making. It then evaluates the current state of participation in practice, drawing especially on a study conducted by the authors into the realities of children’s participation in healthcare decision-making in Ireland. This study helps identify a number of barriers to the delivery of participative practices. In particular, it identifies the potentially inhibiting role of parents, a finding which is replicated by studies in other jurisdictions. The article then investigates the legal status of parental objections to children’s participation and argues that both the CRC and the European Convention on Human Rights provide legal support for a requirement that the child’s right to participate in healthcare decision-making must be protected, even in the face of parental objections. The article also argues that focused legislation and codes of practice have a valuable contribution to make to the delivery of children’s participation rights in practice and that the introduction of such measures should be a priority.
Assessing Legal Capacity: Process and the Operation of the Functional Test
Published in Judicial Studies Institute Journal, Vol. 2, p. 141, 2007
This article identifies a number of factors as important in delivering a suitable assessment process for capacity.... more
This article identifies a number of factors as important in delivering a suitable assessment process for capacity. These include a rigorous application of the functional test, the provision of independent representation for the individual involved, a careful review of medical evidence and the development of a participative element to involve the individual in the process insofar as this is possible.
It argues that it is essential that care is taken to ensure that the process of capacity assessment operates in a way that is most appropriate for the individual whose capacity, and ultimately whose rights, are at stake.
Best Interests, Patient Participation and the Mental Capacity Act 2005
Published in Medical Law Review, Vol. 17, pp. 1-29, 2009
This article analyses the best interests standard as applied in the context of healthcare decisions in light of the... more
This article analyses the best interests standard as applied in the context of healthcare decisions in light of the participative elements introduced by the Mental Capacity Act (EW). It begins with a brief consideration of the best interests standard as it developed at common law. The article shows that, while the courts gradually developed a more systematic approach to best interests, judges remained largely resistant to facilitating participation by patients lacking capacity. The article examines the changes brought about by the MCA in this regard. It explores the policy basis for this aspect of the MCA and shows why the participative model represents the most appropriate response to decision-making for people lacking mental capacity.
The article argues that notwithstanding the attractions of the MCA’s participative framework from a policy perspective, this approach to best interests gives rise to important practical and conceptual questions, which the article then explores. The article examines the difficulties in delivering genuine participation at a practical level and identifies the risk that patient participation will become a tokenistic endeavour.
Keeping the Secrets of the Dead? An Evaluation of the Statutory Framework for Access to Information About Deceased Persons
Co-authored with Maeve McDonagh, published in Legal Studies, Vol. 31, pp. 42-70, 2011
In England and Wales, the question of access to information about deceased persons is determined under two separate... more In England and Wales, the question of access to information about deceased persons is determined under two separate statutes: the Access to Health Records Act 1990 and the Freedom of Information Act 2000. This article examines the normative and legal issues raised by access to information about the dead and evaluates the statutory framework. It draws on philosophical and legal sources which support the claim that the dead are owed a moral and legal duty of confidence. However, it also shows that this is not an absolute duty and it identifies the public and private justifications which favor the provision of access to information about the dead. It argues that the current statutory framework is excessively restrictive and that it fails to provide an appropriate context within which interests favoring access may be considered. Accordingly, it argues that the law needs to be reformed and that a specific legislative framework dealing with access to information about the dead should be introduced. The article concludes by setting out some preliminary suggestions regarding the possible form of such a legislative framework.
Abortion, Assisted Suicide and the Preservation of Life: Are Legal Duties Based on Moral Obligations?
by Liam Draper
“It would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on... more
“It would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation. A legal common law duty is nothing else than the enforcing by law of that which is a moral obligation without legal enforcement.”
An examination and analysis of English medical law (excluding the law of clinical negligence) supporting the view that, in the fields mentioned, Lord Coleridge’s statement is correct.
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Download (.doc) SCRIPTed: Report of the Human Fertilisation and Embryology Act Workship
Co-authored with Dr Christine Knight. Published in SCRIPTed: A Journal of Law, Technology & Society (2011) 8(1), pp. 107-111
Event report following a multidisciplinary workshop at the Economic and Social Research Council's Genomics Policy and... more Event report following a multidisciplinary workshop at the Economic and Social Research Council's Genomics Policy and Research Forum, which took place at the University of Edinburgh on 20 January 2011.
Reviewing Access to Assisted Reproductive Technology for the Creation of 'Saviour Siblings': Limits on the Basis of Genetic Disposition?
Published in: Proceedings The Australasian Bioethics Association and The Australian and New Zealand Institute of Health, Law and Ethics Joint Conference 2007. Health, Bioethics and the Law: Inclusions and Exclusions, Melbourne, Australia
The regulation of assisted reproductive technology (ART) in Australia is a complicated mix of legislation,... more The regulation of assisted reproductive technology (ART) in Australia is a complicated mix of legislation, professional standards and guidelines. The legislation in Victoria, South Australia, and Western Australia, place limits on access to fertility services that do not exist in the non-statutory jurisdictions. Those who are clinically infertile or at risk of passing on a genetic disease or disorder if they were to naturally conceive are able to access services. However, it is arguable that the statutory eligibility criteria remain discriminatory in two ways despite the impact of previous court challenges. Firstly, it remains discriminatory to deny access to single and lesbian women unless they have been unable to conceive after having heterosexual intercourse over a required time frame. The main focus of the paper however, relates to the second aspect of the statutory eligibility criteria, particularly in relation to the creation of saviour siblings. Some couples seek access to IVF services on the basis that they wish to have another child who would also be a tissue type match for an existing ill child. The use of pre-implantation genetic diagnosis offers assistance in establishing tissue type prior to implantation of an embryo in the IVF cycle. However, under the current statutory eligibility criteria, a couple will only be granted access if they are themselves at risk of passing on a genetic disease or disorder. This means a couple who wish to use PGD solely to detect tissue type would not fall within the eligibility criteria. The lack of eligibility criteria in the non-statutory jurisdictions means that the technology is potentially available for detecting tissue compatibility regardless of whether the parents are themselves at risk of passing on a genetic disease. A distinction that is arguably irrelevant.
Reviewing regulation of assisted reproductive technology in New South Wales: The Assisted Reproductive Technology Act 2007 (NSW)
Published in: Journal of Law and Medicine (2008) 16(2)
Licensing 'saviour siblings': Why the HFEA is right
Published on the website, Bionews, February 2010
Giving from the heart
Newspaper Article
Aging population, dearth of organ donors spurs post-doc’s research Aging population, dearth of organ donors spurs post-doc’s research
The Laws of the Heart
Newspaper Article
McGill Research Group on Health and Law member Mélanie Mader wants to have a frank discussion about organ donation and... more McGill Research Group on Health and Law member Mélanie Mader wants to have a frank discussion about organ donation and she has an unusual suggestion for how to go about doing so.
L'Etat doit renoncer à sa neutralité
Newspaper Article
Si la médecine de transplantation avait davantage d’organes à disposition, elle pourrait sauver de nombreuses vies. La... more Si la médecine de transplantation avait davantage d’organes à disposition, elle pourrait sauver de nombreuses vies. La juriste Mélanie Mader exige l’introduction d’incitations étatiques afin d’augmenter le nombre de donneurs.
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Study urges new incentives for organ donors
Newspaper Article
A Swiss researcher has called for financial perks to counter a persistent shortage of organ donations in Switzerland. A Swiss researcher has called for financial perks to counter a persistent shortage of organ donations in Switzerland.
Le don d’organes au carrefour des logiques de don, de marché et de l’Etat solidaire: un compte rendu
Swisstransplant News, September 2011(13), p. 10-13.
Récompenser un acte généreux et solidaire ou la responsabilité de l’Etat pour assurer la disponibilité des organes
Swisstransplant News, September 2010(9), p. 6-7.
Les établissements médico-sociaux peuvent invoquer la liberté économique pour contester les conditions à l’octroi de subventions cantonales
Weblaw Push-service (online publication), August 20, 2010.
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Financement des hôpitaux et des soins: éléments importants des révisions LAMal, marge de manoeuvre des cantons et rôle de la liberté économique
Revue suisse de droit de la santé, 2011, p. 87-124.
Les révisions LAMal relatives au financement des hôpitaux et des soins entraînent un profond remaniement du système... more Les révisions LAMal relatives au financement des hôpitaux et des soins entraînent un profond remaniement du système actuel. Le nouveau financement dual fixe des hôpitaux admis dans la liste hospitalière par les assurances-maladie et les cantons en constitue certainement un des changements majeurs. L’admission dans la liste donne dorénavant non seulement le droit de pratiquer à charge de l’AOS, mais implique également le droit d’obtenir la part de financement cantonale, indépendamment de la forme juridique de l’hôpital. Le droit fédéral restreint ainsi la marge de manœuvre des cantons en ce qui concerne la question de savoir quels hôpitaux ils veulent admettre dans la liste hospitalière et quelles conditions ils peuvent imposer pour l’octroi des subventions cantonales. Suite aux révisions LAMal, et considérant la jurisprudence antérieure du Tribunal fédéral relative à la liberté économique, les conséquences sur la position des cliniques privées méritent une considération approfondie.