'Conversion Therapy' As Degrading Treatment.

This article responds to the widespread uncertainty in UK and international human rights law over the legality of 'conversion therapy', a set of practices that aim to eradicate LGBTIQ+ sexualities and gender identities. The article pursues two main arguments. First, it is argued that all forms of 'conversion therapy' are disrespectful of the equal moral value of LGBTIQ+ people and violate specific protected areas of liberty and equality that are inherent in the idea of human dignity. Secondly, the article develops a theoretical account of degrading treatment under article 3 of the European Convention on Human Rights that illuminates the relationship between the prohibition of degrading treatment, human dignity and antidiscrimination. It is then argued that 'conversion therapy', in all its different forms, spawns the specific kind of degradation that UK and international human rights law prohibit. The article ends by analysing the positive state obligations that arise in this context.

Healthcare Professional Standards in Pandemic Conditions: The Duty to Obtain Consent to Treatment.

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.

Halting the Vicarious Liability Juggernaut: Barclays Bank PLC v Various Claimants.

In Barclays Bank plc v Various Claimants [2020] UKSC 13, the Supreme Court rejected the claimants' argument that Barclays should be vicariously liable for the sexual assaults of a doctor hired on as a contractor to perform medical examinations on employees and job candidates at the bank. It upheld the traditional rule that a defendant is not vicariously liable for the torts of independent contractors. This commentary examines the law on liability for independent contractors and considers whether the Supreme Court decision is consistent with modern employment trends. The implications of the decision for medical law are then discussed.

Think of the Children: Liability for Non-Disclosure of Information Post-Montgomery.

In 2015, the Supreme Court in Montgomery v Lanarkshire Health Board handed down a landmark decision on informed consent to medical treatment, heralding a legal shift to a more patient-centred approach. Montgomery, and the extensive commentary that has followed, focuses on 'adult persons of sound mind'. Cave and Purshouse consider the potential claims that may flow from a failure to adequately inform children. They argue that the relevance of the best interests test blurs the boundaries between negligence and battery. Limitations on children's rights to make treatment decisions for themselves impact on their potential to claim in negligence for non-disclosure and, conversely, enhance the potential relevance of the tort of battery. In paediatric cases, Montgomery raises expectations that the law is currently ill-equipped to satisfy. Tort law provides a legal incentive to disclose relevant information to children but limits the availability of a remedy.

The Impatient Patient and the Unreceptive Receptionist: Darnley v Croydon Health Services NHS Trust [2018] UKSC 50.

In Darnley v Croydon Health Services NHS Trust [2018] UKSC 50, the Supreme Court held that a hospital receptionist's misleading statement about A&E waiting times constituted a breach of duty and that the claimant's decision, based on this misinformation, to leave the hospital did not break the chain of causation when he was left paralysed as a result of a head injury. In this commentary, I argue that while the Supreme Court's treatment of duty of care and breach is, for the most part, a model of doctrinal clarity, its treatment of the causation issue is problematic as it elides the test of whether there has been a break in the chain of causation with that for remoteness. I then comment on the Supreme Court's construction of the patient in medical negligence cases.

The Problem of Unenforceable Surrogacy Contracts: Can Unjust Enrichment Provide a Solution?

The fact that surrogacy contracts are unenforceable can cause problems if a surrogate decides that she wishes to keep the child. When this happens, the intended parents cannot bring a claim in contract compelling her to give the baby up to them or even for the return of money paid to the surrogate. Intuitively, it appears unfair that the surrogate can keep the child and the money while the intended parents are left with nothing. However, enforcing such contracts could be oppressive to the surrogate and detrimental to the child's welfare. In this article, we consider whether the law unjust enrichment will allow for the return of money paid under such contracts. We argue that this branch of the law can provide a solution to the problem of unenforceable surrogacy contracts that strikes a fair balance between the interests of the surrogate and intended parents while also placing the child's lifelong welfare paramount.

Autonomy, Affinity, and the Assessment of Damages: ACB v Thomson Medical Pte Ltd [2017] SGCA 20 and Shaw v Kovak [2017] EWCA Civ 1028.

In ACB v Thomson Medical Pte Ltd [2017] SGCA 20 and Shaw v Kovak [2017] EWCA Civ 1028, the idea that 'lost autonomy' should be recognised as a new form of actionable damage in the tort of negligence was rejected in Singapore and England, respectively. This, it will be argued, was the correct outcome. Protecting an interest in autonomy via the tort of negligence would undermine the coherence of that tort. In ACB, however, a new, different, form of damage was recognised: loss of 'genetic affinity'. This commentary will discuss some problems that protecting an interest in 'genetic affinity' raises before critiquing the approach to assessing damages in ACB.

A Defence of the Counterfactual Account of Harm.

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.