Medical Law vs Health Care Law vs Health Law Flashcards
Medical law view
Dominant and orthodox view of characterising the subject. Focus in this area is on the doctor-patient relationship. Key aim of medical law is that the law should hold doctors accountable - implies a greater degree of interventionism by the judges.
E.g. Kennedy says use objective test for Sidaway - would P attach significance to the particular risk? Objective test makes it easier for courts to adjudicate.
Kennedy and Grubb argue that there are common issues which permeate the subject and give it its underlying coherence. E.g. respect for autonomy; respect for confidentiality; respect for consent etc.
Sources under medical law
Focus on hard law sources over soft law since medical law is concerned with accountability and a proper legal framework.
- Statutes
- Case law
- Human rights instruments
Focus would be on these traditional areas. E.g. consent - Mental Capacity Act 2005. Autonomy - forced caesarean sections.
Problems with medical law
1) Does not explain the whole picture - focuses on the narrow doctor-patient relationship aspect, which means that other important issues are pushed to the side.
2) Focus on legal accountability and rights comes at the expense of quality of care for society more broadly.
Health care law view
The subject is driven by the importance of health in our everyday lives, rather than the doctor-patient relationship and holding doctors legally accountable.
Scope for right to health - used European Social Charter rights which suggests a much broader scope. E.g. preventative measures fall under the subject - health education, disease prevention, regulation of medicine etc.
Coherence stems not from legal rules underlying the law but rather trust in clinical freedom and decision-making. Driven by institutional structures within the NHS - focuses more on soft law sources than hard law.
Health law
This is an even broader view than health care law in terms of the characterisation of the subject. Framing = what is the best way for a patient to solve a health problem. This includes human rights to certain treatments, and the ability as individuals to act as consumers within health care structures in order to determine their treatments.
Hervey and McHale are proponents - need to focus on structures behind medical science, since they are concerned with the opportunity to create and access markets. Consideration of market-based system which consumers can engage in requires science and production of medicine to be brought into scope of subject.
Global perspective
From global perspective, health law may appear to be a more attractive characterisation than health care law. Considers the interaction between different healthcare systems in relation to the individual - or consumer.
E.g. individuals within the EU have the ability to access different EU health care markets depending on what treatment they want. E.g. assisted conception - Blood able to use Belgian clinic even though she could not use her dying husband’s sperm in a UK clinic under HFEA 1990.
Health care markets regulated differently across states - hence health law may give better understanding when we look outside of the UK.
