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Overview

This edited collection is designed to explore the ethical nature of judicial decision-making, particularly relating to cases in the health/medical sphere, where judges are often called upon to issue rulings on questions containing an explicit ethical component. However, judges do not receive any specific training in ethical decision-making, and often disown any place for ethics in their decision-making. Consequently, decisions made by judges do not present consistent or robust ethical theory, even when cases appear to rely on moral claims.The project explores this dichotomy by imagining a world in which decisions by judges have to be ethically as well as legally valid. Nine specific cases are reinterpreted in light of that requirement by leading academics in the fields of medical law and bioethics. Two judgments are written in each case, allowing for different views to be presented. Two commentaries - one ethical and one legal - then explore the ramifications of the ethical judgments and provide an opportunity to explore the two judgments from additional ethical and legal perspectives. These four different approaches to each judgment allow for a rich and varied critique of the decisions and ethical theories and issues at play in each case.

Product Details

ISBN-13: 9781849465793
Publisher: Hart Publishing
Publication date: 01/12/2017
Pages: 312
Product dimensions: 6.00(w) x 9.00(h) x 0.70(d)

About the Author

Stephen W Smith is a Senior Lecturer in Medical Law and Ethics at Cardiff University.John Coggon is Professor of Law at the University of Bristol.Clark Hobson is a Teaching Fellow at Birmingham Law School, University of Birmingham.Richard Huxtable is Professor of Medical Ethics & Law, and Deputy Director of the Centre for Ethics in Medicine at the University of Bristol.Sheelagh McGuinness is Senior Lecturer in Law at the University of Bristol.José Miola is Professor of Medical Law at the University of Leicester.Mary Neal is a Senior Lecturer at the University of Strathclyde.

Table of Contents

Acknowledgements vii

Contributors xiii

Notice on the Order of Judgments xv

Table of Cases xvii

Table of Legislation xix

Introduction-Medicine in the Courtroom: Judges, Ethics and the Law 1

Re A (Conjoined Twins: Surgical Separation) [2001] Fam 147 9

Judgment 1-Re A (Conjoined Twins: Surgical Separation) [2001] Fam 147 Ost LJ (Suzanne Ost) 11

Judgment 2-Re A (Conjoined Twins: Surgical Separation) [2001] Fam 147 Huxtable LJ (Richard Huxtable) 18

Legal Commentary-Twisted Reasoning: Disentangling Matters of Law, Conjoined Embodiment, Life, and Death Kirsty Moreton 24

Ethical Commentary-Conjoineds, Care, and the Question of Identity: Some Reflections on the Ethics of Re A Jackie Leach Scully 31

R (on the Application of Axon) v Secretary of State for Health [2006] EWHC 37 (Admin) 38

Judgment 1-R (on the Application of Axon) v Secretary of State for Health [2006] EWHC 37 (Admin) Herring J (Jonathan Herring) 39

Judgment 2-R (on the Application of Axon) v Secretary of State for Health [2006] EWHC 37 (Admin) Biggs J (Hazel Biggs) 45

Legal Commentary-Axon and Autonomy: A Missed Opportunity? Elizabeth Wicks 51

Ethical Commentary-Axon, Autonomy and Confidentiality David Archard 57

Airedale NHS Trust v Bland [1993] AC 789 64

Judgment I-Airedale NHS Trust v Bland [1993] AC 789 Lord Smith of Erie Stephen W Smith 65

Judgment 2-Airedale NHS Trust v Bland [1993] AC 789 Lord Jones of Anscombe David A Jones 71

Legal Commentary-Living and Letting Die: Harmful Intentions and the Best Interests of Anthony Bland Hazel Biggs 77

Ethical Commentary: The Ethical Acceptability of Discontinuing Artificial Nutrition and Hydration for Patients in a Permanent Vegetative State James F Childress 84

R v Human Fertilisation and Embryology Authority, ex parte Blood [1999] Fam 151 91

Judgment 1-R v Human Fertilisation and Embryology Authority, ex parte Blood [1999] Fam 151 Laurie J (Graeme Laurie) 92

Judgment 2-R v Human Fertilisation and Embryology

Authority ex parte Blood [1999] Fam 151 Jackson J (Emily Jackson) 98

Legal Commentary. R v Human Fertilisation and Embryology Authority, ex parte Blood Mary Neal 104

Ethical Commentary-Beyond Law: An Ethical Critique of Blood Heather Widdows 111

Bolitho v Hackney Health Authority [1998] AC 232 117

Judgment 1-Bolitho v Hackney Health Authority [1998] AC 232 Lord Montgomery of Botley Jonathan Montgomery 119

Judgment 2-Bolitho v Hackney Health Authority [1998] AC 232 Lord Miola of South Leicester José Miola 125

Legal Commentary-Bolitho: Expertise, Law and Medicine Nicky Priaulx Martin Weinel Chris Goldsworthy 131

Ethical Commentary-Bolam, Bolitho and the Crisis of Legal Form John Harrington 138

R v Bourne [1939] 1 KB 687 145

Judgment 1-R v Bourne [1939] 1 KB 687 McGuinncss J (Sheelagh McGmnness) 146

Judgment 2-R v Bourne [1939] 1 KB 687 Dellapenna J (Joseph Dellapenna) 151

Legal Commentary-R v Bourne: A Historical Context Lois S Bibbings 157

Ethical Commentary-Abortion and Physician Conscientious Action Françoise Baylis 164

Chester v Afshar [2005] 1 AC 134 172

Judgment 1-Chester v Afshar [2005] 1 AC 134 Lord Heywood of Tameside Greater Manchester Rob Heywood 174

Judgment 2-Chester v Afshar [2005] 1 AC 134 Lady Devaney of Preston Sarah Devaney 181

Legal Commentary-Taking Autonomy Seriously? Loss of Autonomy as a Legal 'Harm' José Miola 187

Ethical Commentary-Autonomy Rights and Duties: Ethical Issues in and around Chester v Afshar John Coggon 193

R (on the Application of Nicklinson and Another) v Ministry of Justice [2014] UKSC 38 200

Judgment 1-R (on the Application of Nicklinson and Another) v Ministry of Justice [2014] UKSC 38 Lord Huxtable of Pen-y-bont ar Ogwr Richard Huxtable 202

Judgment 2-R (on the Application of Nicklinson and Another) v Ministry of Justice [2014] UKSC 38 Lord Coggon of Bedmo John Coggon 208

Legal Commentary-Assisted Suicide: Unpicking the Warp and Woof of Politics, Ethics and the Law in Nicklinson Clark Hobson 214

Ethical Commentary-Nicklinson and the Ethics of the Legal System Stephen W Smith 221

St George's Healthcare NHS Trust v S [1999] Fam 26 227

Judgment 1-St George's Healthcare NHS Trust v S [1999] Fam 26 Neal LJ Mary Neal 229

Judgment 1-St George's Healthcare NHS Trust v S [1999] Fam 26 Fovargue LJ Sara Fovargue 235

Legal Commentary-Giving Birth, Foetal Subjectivity, and Harm Sheelagh McGmnness 241

Ethical Commentary-A Necessarily Feminist Critique of the Judgments Sorcha Ui Chonnachtaigh 248

Conclusion-Medical Law Rewritten? 255

Glossary 261

Index 281

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