There is legal uncertainty and academic disagreement as to the legal status of biological material that has become separated from the person. This article sets out the two criteria upon which the assessment of the legal status of ‘separated biological material’ ought to be made. It is suggested here that any argument concerning the legal status of separated biological material needs to (i) assess which ownership entitlements in the material the law ought recognize and (ii) assess which set of legal (...) rules ought to be used to protect these ownership entitlements. There are also limits to the way these two criteria ought to operate. First, the considerations that are necessary to justify an ownership entitlement in a body part vary between different types of ownership entitlements. Second, whether there is a necessary connection between recognizing an ownership entitlement and protecting the entitlement in a particular way also varies in terms of the type of ownership entitlement in question. By isolating these two criteria, and identifying the limits to their operation, this article prescribes an analytical framework through which the law and academic commentary can be viewed. (shrink)

The rules governing recovery for negligently inflicted psychiatric injury are among the most criticized of all of tort law. However, one area which, to date, has escaped with a minimum of judicial or academic scrutiny concerns the very threshold requirement for these actions: proof of a ‘recognized psychiatric illness’. This article critiques that longstanding requirement of English law from two perspectives. First, it is argued that the international classifications of psychiatric disorders (ICD-10 and DSM-IV) are being misapplied and misconstrued in (...) the English medico-legal context and that the role (and limitations) of these classifications are worthy of far greater judicial examination and critical scrutiny than has typically been the case to date. Secondly, it is contended that the insistence upon a recognized psychiatric illness, as a threshold requirement, is giving rise to inconsistencies and distortions in the law and that the requirement is neither legally nor medically supportable in the modern era. Instead, it is argued that the stage has been reached whereby something lesser than a recognized psychiatric illness should be sufficient to trigger a compensable injury in law. The article concludes by suggesting various legal avenues by which to feasibly and robustly ‘ring-fence’ the number of potential claims in negligence, should the reform-oriented approach of this article be adopted. (shrink)

This paper argues that the new commercial and quasi-commercial activities of medicine, scientists, pharmaceutical companies and industry with regard to human tissue has given rise to a whole new way of valuing our bodies. It is argued that a property framework may be an effective and constructive method of exploring issues arising from this. The paper refers to A M Honoré’s theory of ownership and aims to show that we have full liberal ownership of our own bodies and as such (...) can be considered to be self-owners. (shrink)