Medical Law: Text, Cases, and Materials

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The Human Fertilisation and Embryology Act 1990 and Non-Traditional Families’ (2023) MLR (with Kirsty Horsey) Abortion: Medical Paternalism or Patient Autonomy?’ in Abortion: Whose Right? (Hodder and Stoughton, 2002) 1-15 There is considerable evidence that the internet is by far the most important source of information for reproductive travellers, 43 and that healthcare professionals in their home country are very rarely people’s primary source of information and advice. 44 In the UK, Hanefeld at al interviewed 77 outbound patients and found that most had identified a specific clinic or provider through facilitators in the UK or online forums. 45 In Australia, Hammarberg et al’s study found that those travelling abroad for surrogacy sourced most of their information ‘online and from other parents through surrogacy’. Our preliminary findings strongly reflect this trend, with patients actively amassing information from a variety of internet sources. The quality and accuracy of online material is decidedly variable, 46 and much of it is unverifiable, yet our participants regularly referred to this process as ‘research’. Using information disclosure as a consumer protection technique rests on the assumption that the average consumer has the capacity to process information and act on it, and that it is only atypical vulnerable consumers who need special protection. Yet, as Howells points out, ‘The truth is that we are all to some extent vulnerable, because of the limitations of the human mind.’ 50 Oren-Gill and Ben-Shahar explain that:

Regulating Autonomy: Sex, Reproduction and the Family- co-editor, with Fatemeh Ebtehaj, Martin Richards and Shelley Day Sclater (Hart 2009) In addition to considering their own wellbeing, patients are often concerned about the impact of their condition and its treatment upon their dependants. 23 Patients are therefore making multi-faceted and challenging decisions, from a position of vulnerability, and in the context of a doctor–patient relationship where there may be a high level of trust, and even dependence. Indeed, this is why, as Purshouse has explained, invoking the metaphor of ‘patients as consumers’ in an informed consent case represents a departure from the more usual depiction of patients in clinical negligence cases as potentially, if not inherently vulnerable. 24 An underlying regulatory assumption is often that treatment at home is ‘better’ than the international alternatives. Implicit here is the premise that the law will best protect patients through discouraging international travel. Here, the patient experience diverges. It is clear that patients paying for treatment overseas feel as though they are more in control of their treatment, and that, in contrast to their experience of domestic fertility services, they do not have to be grateful for what they receive. Indeed, in many of our interviews patients have praised the standard of care they received overseas, considering it superior to that available at home. Opting out of local, regulated services is not necessarily always an unwelcome last resort then, but may have positive advantages for some patients. If this is the case, we should be interested in listening to what patients say is ‘better’ about treatment overseas, rather than just dismissing their accounts as wishful thinking. Kai Möller 'Male and Female Genital Cutting: Between the Best Interest of the Child and Genital Mutilation' Oxford Journal of Legal Studies[online first] As Howells has pointed out ‘the provision of information is one of the key tools available to enhance consumer protection’. 40 According to classical contract theory, information provision serves multiple desirable goals:

Medical Law: Text, Cases, and Materials (5th edn)

Informed Consent and the Impotence of Tort’ in S. McLean (ed) First Do No Harm(Aldershot, Ashgate, 2006) 273-86

After years of unsuccessful IVF in Australia, Leah travelled to Greece to undergo IVF and egg donation. She explained that her GP in Australia was helping her: Introducing Feminist Legal Theory’ in J Penner, D Schiff and R Nobles (eds) Introduction to jurisprudence and Legal Theory: Commentary and Materials(Butterworths, 2002) 779-853 (with Nicola Lacey) Patients’ wishes and best interests: reforming section 4 of the Mental Capacity Act 2005’ in Lindy Wilmott and Ben White (eds) International Perspectives on End-of-Life Reform: Politics, Persuasion and Persistence (Cambridge UP, 2021) I think I just really liked the way — I think we have covered this off before as well, but the agency is very respectful to the surrogate in what they call the fourth trimester, meaning, dealing with her effectively and caring — in a caring way about the fact that — how’s she’s going to feel post separation after the birth. I think for us, it’s really important to have a sense that we’re doing the right thing and that we’re not exploiting anyone.Medical and Mental Health Law have been taught at the LSE for over 10 years, with a strong research component to the teaching being complemented by a focus on the regulation of healthcare. The law school has particular expertise in the fields of reproductive technologies and embryo research, donor conception and surrogacy, end of life decision-making, regulation of the pharmaceutical industry, medical mishap and the resolution of disputes between healthcare providers and doctors, healthcare rationing, dementia, unfitness to plead and the criminal and civil aspects of mental health law. Research in the law school has a strong interdisciplinary and socio-legal flavour. Members of the faculty have made substantive research contributions to law reform processes in these areas, and routinely sit on expert panels and committees. They have conducted research funded by the Department of Health, health authorities, government commissions and the European Parliament. Faculty

There are multiple differences between pre-contractual information disclosures to consumers and the process of gaining a patient’s informed consent to medical treatment. First, as Tallis explained in the context of a debate over whether patients should be redefined as customers:

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I mean Thailand didn’t have specific laws at the time. We were certainly aware that there [were] draft laws on the table, but at the time they didn’t have those laws. However through just common practice, we actually felt that the laws were quite protective of us, of doing surrogacy. In practice, de facto tolerance of the evasion of reproductive travellers may be inevitable; as one of Culley et al’s respondents put it: ‘what are you going to do, confiscate their passports?’ 40 But whether characterised as a pluralistic ‘safety value’ 41 or as out-and-out hypocrisy, 42 there is at the very least a mixed message being sent about the status of the extra-territorial prohibition of international commercial surrogacy. IV. INTERNET-ASSISTED REPRODUCTION AND THE UBIQUITY OF FACEBOOK