Medical Law: Text, Cases, and Materials

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Crucial to this ‘behavioural critique’ is the recognition that the failure to understand disclosures is not, as is sometimes assumed, confined to people who are especially vulnerable. Even if information disclosures are more likely to be used by ‘the more affluent, well-educated middle-class consumers’, 48 the tendency to misunderstand disclosures and misread information, is certainly ‘not limited to the uneducated and unintelligent’. 49 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: Review from previous edition This is the best text, cases and materials book on medical law around. It explains the law and ethical literature in an accessible manner while still being thorough. I cannot recommend it highly enough." - Dr Craig Purshouse, Senior Lecturer in Law, University of Liverpool

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’: Then [my partner] Wayne mentioned the word—the phrase ‘commercial surrogacy’. At that point Dr C said ‘no’. He just doesn’t want to know anything about it. He said don’t talk to me about that. It’s illegal, it’s—basically, the door was shut at that point here in Australia. Whose Death is it Anyway? Euthanasia and the Medical Profession’ (2004) 57 Current Legal Problems 415-442

Essentially then, legal advice is ‘almost pointless’ for an unviable contract, which nevertheless is capable of going some way to protect the rights and liabilities of the parties throughout the arrangement. Yeah, at the time Yahoo Groups were really popular… so I was accessing those. They were really popular in terms of people communicating and providing stories and getting updated information and asking questions, in mostly a respectful manner most of the time so it was really good… Well, now I guess the Facebook groups have taken over the Yahoo Groups… . Some of the Facebook groups are country-specific, so there’s one or two for Nepal, or there used to be one for Thailand… IVF birth data presentation: Its impact on clinical practice and patient choice’ in Martin Johnson et al (eds) Birth Rites and Rights (Hart, 2010) DIY Abortion and Harm Reduction' in G Laurie and P Ferguson (eds) Inspiring a Medico-Legal Revolution: Essays in Honour of Sheila McLean (Ashgate, 2015) 25-36

So I got there by myself. The second or third day, while I—maybe the second day—after arriving in New Delhi I had a consultation with Dr I (India). They had done a blood test. She said that my [hormone] level was too high; too high or too low, I can’t remember, but as far as she’s concerned it would just be a complete waste of time to do an IVF treatment on me. I mean Thailand didn’t have specific laws at the time. We were certainly aware that there [were] draft laws on the table, but at the time they didn’t have those laws. However through just common practice, we actually felt that the laws were quite protective of us, of doing surrogacy. R v Human Fertilisation and Embryology Authority ex parte Blood Judgment 2 in Stephen W Smith et al (eds) Ethical Judgments: Rewriting Medical Law (Hart, 2017) 98-103.Some participants were also clear that they valued the service provision of commercial providers, not only to themselves, but also to the surrogate or egg donor. Gerry, who had used a surrogacy agency in Canada said:

Medical Law: Text, Cases, and Materials offers all of the explanation, commentary, and extracts from cases and key materials that students need to gain a thorough understanding of this complex topic. With Jonathan Herring and Sally Sheldon, ‘Would decriminalisation of abortion mean deregulation?’ in Sally Sheldon (ed) What would it Mean to Decriminalise Abortion in the UK? The Evidence (Policy Press, 2020) 57-76

Secondly, pre-contractual disclosures are often explicitly intended to reduce or eliminate liability. Even if there is evidence that some patients think that by signing a consent form, they have waived their right to sue if something goes wrong, 37 the consent form is not a contract, and the patient is free to change her mind after signing it. Using information disclosure as a consumer protection technique rests on the assumption that the average consumer has the capacity to process information and act on it, and that it is only atypical vulnerable consumers who need special protection. Yet, as Howells points out, ‘The truth is that we are all to some extent vulnerable, because of the limitations of the human mind.’ 50 Oren-Gill and Ben-Shahar explain that: The relationship between medical law and good medical ethics' (2015) 41 Journal of Medical Ethics 41 (1): 95-98 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 Because ‘the adoption of information obligations for traders is a measure that intrudes upon the freedom of the marketplace and party autonomy only to a small extent’, 42 ‘“empowering” consumers through information has become a singularly important element in the regulatory toolbox’. 43

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.

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. 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. It would be possible to regard reproductive travel as an aberration, relied upon in extremis by people who are prevented, either by law or de facto, from accessing reproductive services at home. In response to the increasing numbers of people travelling for reproductive purposes, enabling more people to access local fertility services might therefore be a plausible and laudable regulatory objective. 61 But while we would support measures to improve access to services, not least because these might also meet the needs of those who cannot afford to travel, we would like to suggest that we should also be interested in what local fertility providers and regulators can learn from the experiences of reproductive travellers. Lauren also expressed a real sense of discontent about not being able to compensate her surrogate, saying: