In order to determine whether a particular course of conduct is ethically permissible it is important to have a concept of what it means to be harmed. The dominant theory of harm is the counterfactual account, most famously proposed by Joel Feinberg. This determines whether harm is caused by comparing what actually happened in a given situation with the ‘counterfacts’ i.e. what would have occurred had the putatively harmful conduct not taken place. If a person's interests are worse off than (...) they otherwise would have been, then a person will be harmed. This definition has recently faced challenges from bioethicists such as John Harris, Guy Kahane and Julian Savulescu who, believing it to be severely flawed, have proposed their own alternative theories of the concept. In this article I will demonstrate that the shortcomings Harris, Kahane and Savulescu believe are present in Feinberg's theory are illusory and that it is their own accounts of harm that are fraught with logical errors. I maintain that the arguments presented to refute Feinberg's theory not only fail to achieve this goal and can be accommodated within the counterfactual account but that they actually undermine the theories presented by their respective authors. The final conclusion will be that these challenges are misconceived and fail to displace the counterfactual theory. (shrink)

In modern law medical paternalism no longer rules. Respect for patient autonomy is now a fundamental principle of both medical law and bioethics. As a result of these developments, and cases such as Rees v Darlington Memorial NHS Trust and Chester v Afshar, there have been suggestions that the law of clinical negligence should be developed so as to recognise diminished autonomy as a form of actionable damage in this area of tort law. Yet in order for the tort of (...) negligence to recognise this new interest, it is first necessary to determine how autonomy should be understood in this context. The purpose of this article is to shed light on this issue and arrive at a suitable definition of the concept. After outlining the different theories of autonomy it is argued that the traditional liberal definition is the most philosophically and legally coherent. (shrink)

In the United Kingdom, the question of how much information is required to be given to patients about the benefits and risks of proposed treatment remains extant. Issues about whether healthcare resources can accommodate extended shared decision-making processes are yet to be resolved. COVID-19 has now stepped into this arena of uncertainty, adding more complexity. U.K. public health responses to the pandemic raise important questions about professional standards regarding how the obtaining and recording of consent might change or be maintained (...) in such emergency conditions, particularly in settings where equipment, medicines, and appropriately trained or specialized staff are in short supply. Such conditions have important implications for the professional capacity and knowledge available to discuss the risks and benefits of and alternatives to proposed treatment with patients. The government’s drive to expedite the recruitment to wards of medical students nearing the end of their studies, as well as inviting retired practitioners back into practice, raises questions about the ability of such healthcare providers to engage fully in shared decision-making.This article explores whether the legal duty on healthcare practitioners to disclose the material risks of a proposed medical treatment to a patient should be upheld during pandemic conditions or whether the pre-eminence of patient autonomy should be partly sacrificed in such exceptional circumstances. We argue that measures to protect public health and to respect autonomous decision-making are not mutually exclusive and that there are good reasons to maintain professional standards in obtaining consent to treatment even during acute pressures on public health systems. (shrink)

Health and health care are vitally important to all of us, and academic interest in the law regulating health has, over the last 50 years, become an important field of academic study. An analysis of the development of, changes in, and scope of Health Law and Ethics to date, is both timely and of interest to students and scholars alike, along with an exploration of its likely future development. This work brings together contributions from leading and emerging scholars in the (...) field. Each contributor has been invited to select and analyse a 'leading work', which has for them shed light on the way that Health Law and Ethics has developed. The chapters are both autobiographical, reflecting upon the works that have proved significant to contributors, and also critical analyses of the current state of the field. This collection also includes a specially written Introduction and Conclusion, which critically reflect upon the development of Health Law and Ethics and its likely future developments in the light of the reflections by contributors on their chosen leading works. The book will be of interest to students, teachers and researchers in Health Law and Ethics, as it provides critical discussions and assessments of some of the leading scholarship in the field. (shrink)