Defining a legal field has functional importance and a legitimising usefulness for the field. There is no doubt that health care law (HCL) has emerged as a field of law and a discrete academic discipline in England and Wales with indicators that gradually became identifiable post-1980. Increasingly, patients aggrieved by their clinical experiences have sought redress in the courts. Doctors have also resorted to the courts for declarations as to the legality of proposed procedures that are ethically sensitive. The burgeoning litigation in healthcare has not only generated an avalanche of case law for academic study, but has also exposed the inadequacy of the common law in resolving the specific bioethical and legal challenges raised by healthcare. Specific legislation was enacted for the first time to address issues raised by medical advances. Concomitant with the evolution of this field of law was the emergence of its academic discipline. It entered the curriculum of legal education as many universities began to teach HCL. This eventually triggered a proliferation of textbooks and journals. The proliferation of literature was accompanied by the creation of academic research centres. Active scholarship in this field has manifested itself in four different doctrinal orientations, namely medical ethics, human rights, and multidisciplinary and socio-legal approaches.
| Published in | International Journal of Law and Society (Volume 5, Issue 1) |
| DOI | 10.11648/j.ijls.20220501.16 |
| Page(s) | 45-52 |
| Creative Commons |
This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited. |
| Copyright |
Copyright © The Author(s), 2022. Published by Science Publishing Group |
Health Care Law, Medical Law, Medical Ethics, Healthcare and Human Rights, Feminism, Socio-legal
| [1] | E Jackson, Medical Law –Text, Cases, and Materials (Oxford: Oxford University Press 2010) 3. |
| [2] | I Kennedy and A Grubb, Medical law: Text and Materials (3rd edn, London: Butterworths 2000) v. |
| [3] | J Coggon, What Makes Health Public? A Critical Evaluation of Moral, Legal, and Political Claims in Public Health (Cambridge, Cambridge University Press 2012) ch 5. |
| [4] | P Cane, Atiyah’s Accidents, Compensation and the Law (6th edn, Cambridge: Cambridge University Press 2004) 25-26. |
| [5] | See generally: HM Evans, ‘Philosophy and the Medical Humanities’ in HM Evans and I Finlay (eds), Medical Humanities (London: BMJ Books 2001) 250-256. |
| [6] | M Davies, Textbook on Medical Law (2nd edn, London: Blackstone Press Ltd 1998) 3. |
| [7] | A Grubb, ‘The Emergence and Rise of Medical Law and Ethics (1987) 50 Modern Law Review, 241-267. |
| [8] | N Hoppe and J Miola, Medical Law and Medical Ethics (Cambridge, Cambridge University Press 2014) 1. |
| [9] | I Kennedy and A Grubb, Medical law: Text and Materials (3rd edn, London: Butterworths 2000) v.; I. Kennedy, Treat Me Right: Essays in Medical Law and Ethics (Oxford: Clarendon Press 1988) 175-212. |
| [10] | D Morgan, Issues in Medical law and Ethics (London: Cavendish 2001). |
| [11] | S McLean Old Law: New Medicine: Medical Ethics and Human Rights (London: Pandora, 1999). |
| [12] | J Herring, Medical Law and Ethics (Oxford: Oxford University Press, 2008). |
| [13] | M Davies, Textbook on Medical Law (2nd edn, London: Blackstone Press Ltd 1998), 3. |
| [14] | N Hoppe and J Miola, n.12 above, 1. |
| [15] | I Kennedy and A Grubb, n.14 above, 679. |
| [16] | I Kennedy, The Unmasking of Medicine (2nd rev edn, St Albans: Granada, 1983), 78, where Kennedy sought to “de-medicalise” medical ethics. I have borrowed the term “de-medicalise” from J Miola, Medical Ethics and Medical Law: A Symbiotic Relationship (Oxford: Hart Publishing 2007) 41. |
| [17] | J Montgomery, ‘The Legitimacy of Medical Law’ in S McLean (ed), First Do No Harm: Law, Ethics and Healthcare (Aldershot: Ashgate Publishing 2006) 4. |
| [18] | J Miola, Medical Ethics and Medical Law: A Symbiotic Relationship (Oxford: Hart Publishing 2007) 6. |
| [19] | Chester v Afshar [2004] UKHCL 41, para 18. |
| [20] | R Dworkin, Life’s Dominion: An Argument about Abortion, Euthanasia, and individual Freedom (New York: Vintage Books 1993). |
| [21] | E Jackson, Medical law (3rd edn, Oxford: Oxford University Press 2012) 11. |
| [22] | J Herring, Medical Law and Ethics (4th edn, Oxford: Oxford University Press 2012) 13. |
| [23] | J Montgomery, ‘The Compleat Lawyer - Medical Law as Practical Reasoning: Doctrine, Empiricism, and Engagement’ (2012) 20 Medical Law Review, 15. |
| [24] | TL Beauchamp and JF Childress, Principles of Biomedical Ethics (7th edn, Oxford: Oxford University Press 2012) ch 1. |
| [25] | M Brazier and S Ost, Medicine and the Criminal Law Volume III: Medicine and Bioethics in the Theatre of the Criminal Process’ (Cambridge: Cambridge University Press, 2013) ch 7, 221. |
| [26] | Airedale NHS Trust v Bland [1993] 1 All ER 821, 850. |
| [27] | I Kennedy, Treat Me Right: Essays in Medical Law and Ethics (Oxford: Clarendon Press 1988) 387. |
| [28] | AM McCall-Smith, ‘Beyond Autonomy’ (1997) 14 Journal of Contemporary Health law and Policy, 23. |
| [29] | I Kennedy and A Grubb, Medical law: Text and Materials (3rd edn, London: Butterworths 2000) 3. |
| [30] | M Brazier and E Cave, Medicine, Patients and the Law (5th edn, England: Penguin Books 2011) xxiii-xlv; JK Mason and GT Laurie, Law and Medical Ethics (Oxford: Oxford University Press 2011) ch 1, at 31. |
| [31] | For example, see A Garwood-Gowers, J Tingle and T Lewis (eds), Healthcare Law: The Impact of the Human Rights Act (London: Cavendish Publishing 2001). |
| [32] | I explore the relevance of specific rights under the ECHR to HCL in Chapter Five. |
| [33] | E Wicks, Human Rights and Healthcare (Oxford: Hart Publishing 2007) 2-3. |
| [34] | A Bois-Pedain, ‘Book Review: Elizabeth Wicks, Human Rights and Healthcare’ (2009) Human Rights Law Review, 171-176. |
| [35] | M Brazier and S Ost, Medicine and Bioethics in the Theatre of the Criminal Process (Cambridge: Cambridge University Press 2013) 184 (references omitted), 219. |
| [36] | Evans v Amicus Healthcare Ltd [2004] EWCA Civ 727. |
| [37] | R (on the application of Purdy) v. DPP [2009] EWCA (Civ) 92. |
| [38] | A Maclean, ‘Crossing the Rubicon on the Human Rights Ferry’ (2001) 64 Modern Law Review, 775, 793. |
| [39] | See, for example: NHS Trust A v Mrs M; NHS Trust B v Mrs H [2001] 2 WLR 942. |
| [40] | WN Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, (USA: Yale University Press 1946). |
| [41] | J Montgomery, ‘The Compleat Lawyer - Medical Law as Practical Reasoning: Doctrine, Empiricism, and Engagement’ 20 Medical Law Review, 9. |
| [42] | H Teff, ‘Clinical Guidelines, Negligence and Medical Practice’ in M Freeman and A Lewis (eds), Law and Medicine Current Legal Issues Volume 3 (Oxford University Press 2000) 432. |
| [43] | M Brazier, ‘Patient autonomy and consent to treatment: the role of the law?’ (1987) 7 Legal Studies, 169. |
| [44] | M Brazier, ‘Patient autonomy and consent to treatment: the role of the law?’ (1987) 7 Legal Studies, 193. |
| [45] | H Teff, ‘Clinical Guidelines, Negligence and Medical Practice’ in M Freeman and A Lewis (eds), Law and Medicine Current Legal Issues Volume 3 (Oxford University Press 2000) 453. |
| [46] | J Harrington, ‘Visions of Utopia markets, medicine and the National Health Service’ (2009) 29 Legal Studies, 376; J Harrington, ‘Regulating Clinical Practice: Epistemological and Cognitive Perspectives’ (2003) 22 Medicine and Law, 221; J Harrington, ‘Art or Science? Understanding Medicine and the Common Law’ (2001) 9 Health Law Journal, 129; J Harrington, ‘Migration and Access to Health Care in English Law: A Rhetorical Critique’ (2008) 4 International Journal of Law in Context, 315; J Harrington, ‘Time as a Dimension of Medical Law’ (2012) 20 Medical Law Review, 491. |
| [47] | K Veitch, ‘The Government of Health Care and the Politics of Patient Empowerment: New Labour and the NHS Reform Agenda in England’ (2010) 32 Law and Policy, 313; K Veitch, ‘Juridification, Medicialisation, and the Impact of EU Law: Patient Mobility and the Allocation of Scarce NHS Resources’ (2012) 20 Medical Law Review, 362; K Veitch, The Jurisdiction of Medical Law, (Aldershot: Ashgate Publishing Ltd. 2007). |
| [48] | P Smith, Feminist Jurisprudence (Oxford: Oxford University Press 1993) 1. |
| [49] | S Sheldon and M Thomson, ‘Health Care Law and Feminism: A Developing Relationship’ in S Sheldon and M Thomson (eds), Feminist Perspectives on Health Care Law (London: Cavendish Publishing 1998) 7-8. |
| [50] | Helen B Homes and Laura M Purdy (eds), Feminist Perspectives in Medical Ethics (Indiana: Indiana University Press 1992); Susan Sherwin, No Longer Patient: Feminist Ethics & Health Care (Temple: Temple University Press 1992). |
| [51] | L Bender, ‘Teaching Feminist Perspectives on Health Care Ethics and Law: A Review Essay’ (1993) 61 University of Cincinnati Law Review, 1251, 1253. |
| [52] | S McLean, Old Law, New Medicine: Medical Ethics and Human Rights (London: Pandora 1999) 69. |
| [53] | For example, see: S Fovargue and J Miola, ‘Policing Pregnancy: Implications of the Attorney-General’s Reference (No. 3 of 1994)’ (1998) 6 (3) Medical Law Review, 265-273; S Sheldon, Beyond Control: Medical Power and Abortion Law (Pluto Press 1997); E Jackson, ‘Abortion, Autonomy and Prenatal Diagnosis’ (2000) 9 Social and legal Studies, 467-94. |
| [54] | E Jackson, ‘Abortion, Autonomy and Prenatal Diagnosis’ (2000) 9 Social and legal Studies, 467-94; S Sheldon, ‘The Abortion Act 1967: A Critical Perspective’ in E Lee (ed), Abortion Law and Politics Today (London: Macmillan 1998) 43-58. |
| [55] | S Sheldon, ‘The Abortion Act 1967: A Critical Perspective ‘in E Lee (ed), Abortion Law and Politics Today (London: Macmillan 1998) 43-58. |
| [56] | E Jackson, Medical Law: Text, Cases and Materials (2nd edn, Oxford: Oxford University Press 2010) 667. |
| [57] | H Draper, ‘Women, Forced Caesareans and Antenatal Responsibilities’ (1996) 22 Journal of Medical Ethics, 337; B Hewson, ‘Women's Rights and Legal Wrongs’ (1996) 146 New Law Journal, 1385. |
| [58] | J Montgomery, ‘Doctors’ Handmaidens: The Legal Contribution’ in S McVeigh and S Wheeler (eds), Law, Health and Medical Regulation (Aldershot: Dartmouth 1992) 141-168. |
| [59] | D Morgan, Issues in Medical law and Ethics (London: Cavendish 2001) 3. |
APA Style
Ernest Owusu-Dapaa. (2022). Reimagining Doctrinal Orientations of English Health Care Law Scholarship Since 1980. International Journal of Law and Society, 5(1), 45-52. https://doi.org/10.11648/j.ijls.20220501.16
ACS Style
Ernest Owusu-Dapaa. Reimagining Doctrinal Orientations of English Health Care Law Scholarship Since 1980. Int. J. Law Soc. 2022, 5(1), 45-52. doi: 10.11648/j.ijls.20220501.16
AMA Style
Ernest Owusu-Dapaa. Reimagining Doctrinal Orientations of English Health Care Law Scholarship Since 1980. Int J Law Soc. 2022;5(1):45-52. doi: 10.11648/j.ijls.20220501.16
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Download@article{10.11648/j.ijls.20220501.16,
author = {Ernest Owusu-Dapaa},
title = {Reimagining Doctrinal Orientations of English Health Care Law Scholarship Since 1980},
journal = {International Journal of Law and Society},
volume = {5},
number = {1},
pages = {45-52},
doi = {10.11648/j.ijls.20220501.16},
url = {https://doi.org/10.11648/j.ijls.20220501.16},
eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20220501.16},
abstract = {Defining a legal field has functional importance and a legitimising usefulness for the field. There is no doubt that health care law (HCL) has emerged as a field of law and a discrete academic discipline in England and Wales with indicators that gradually became identifiable post-1980. Increasingly, patients aggrieved by their clinical experiences have sought redress in the courts. Doctors have also resorted to the courts for declarations as to the legality of proposed procedures that are ethically sensitive. The burgeoning litigation in healthcare has not only generated an avalanche of case law for academic study, but has also exposed the inadequacy of the common law in resolving the specific bioethical and legal challenges raised by healthcare. Specific legislation was enacted for the first time to address issues raised by medical advances. Concomitant with the evolution of this field of law was the emergence of its academic discipline. It entered the curriculum of legal education as many universities began to teach HCL. This eventually triggered a proliferation of textbooks and journals. The proliferation of literature was accompanied by the creation of academic research centres. Active scholarship in this field has manifested itself in four different doctrinal orientations, namely medical ethics, human rights, and multidisciplinary and socio-legal approaches.},
year = {2022}
}
TY - JOUR T1 - Reimagining Doctrinal Orientations of English Health Care Law Scholarship Since 1980 AU - Ernest Owusu-Dapaa Y1 - 2022/01/26 PY - 2022 N1 - https://doi.org/10.11648/j.ijls.20220501.16 DO - 10.11648/j.ijls.20220501.16 T2 - International Journal of Law and Society JF - International Journal of Law and Society JO - International Journal of Law and Society SP - 45 EP - 52 PB - Science Publishing Group SN - 2640-1908 UR - https://doi.org/10.11648/j.ijls.20220501.16 AB - Defining a legal field has functional importance and a legitimising usefulness for the field. There is no doubt that health care law (HCL) has emerged as a field of law and a discrete academic discipline in England and Wales with indicators that gradually became identifiable post-1980. Increasingly, patients aggrieved by their clinical experiences have sought redress in the courts. Doctors have also resorted to the courts for declarations as to the legality of proposed procedures that are ethically sensitive. The burgeoning litigation in healthcare has not only generated an avalanche of case law for academic study, but has also exposed the inadequacy of the common law in resolving the specific bioethical and legal challenges raised by healthcare. Specific legislation was enacted for the first time to address issues raised by medical advances. Concomitant with the evolution of this field of law was the emergence of its academic discipline. It entered the curriculum of legal education as many universities began to teach HCL. This eventually triggered a proliferation of textbooks and journals. The proliferation of literature was accompanied by the creation of academic research centres. Active scholarship in this field has manifested itself in four different doctrinal orientations, namely medical ethics, human rights, and multidisciplinary and socio-legal approaches. VL - 5 IS - 1 ER -
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