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  • Medical Treatment and the Law: Issues of Consent
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Medical Treatment and the Law: Issues of Consent

The Protection of the Vulnerable: Children and Adults Lacking Capacity

FROM £60.00

With a Foreword by Sir James Munby President of the Family Division and President of the Court of Protection

An introduction to the complex and rapidly developing area of medical treatment and the law in relation to the vulnerable, namely children and those adults who lack capacity.

It provides practical guidance and assistance as to the approach taken by the courts on all of the varying material issues raised in relation to medical treatment and the law, the thread of which throughout is the question of ‘consent’.

Care needs to be taken not to infringe the rights of the group of persons who, though vulnerable, are capable of making their own medical treatment decisions. Many who suffer from mental illness are well able to make decisions about their medical treatment, and it is important not to make unjustified assumptions to the contrary.

Even where a person lacks capacity, any interference with their rights and freedom of action must be the least restrictive possible.

The protection too of children who are not legally competent is essential in the above regard.

The text includes analysis of the Supreme Court judgment in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, the first case to come before that court in relation to the Mental Capacity Act 2005. The approach of the courts to the issue of whether or not life-sustaining medical treatment should be given is fully addressed within the book.

The text also includes analysis of the Supreme Court judgment in the cases of Tony Nicklinson, Paul Lamb and AM [2014] UKSC 38 which encompass the issues concerning assisted suicide, mercy killing and voluntary euthanasia.

The general principles set out in Part 1 are elucidated upon in more detail in the remaining parts II, III and IV of the book.

The substance of the book is intended to be of assistance not only to the legal profession and judiciary but also for those working within the field of medicine or other areas concerned with the welfare and protection of vulnerable, whether adults or children.
Part I: General Principles in Relation to Medical Treatment and the Law
  • Medical treatment and consent
  • The ‘best interests of the patient’ test
  • The doctor and the courts
  • The Mental Capacity Act 2005
Part II: The Right to Life; The ‘Right to Die’
  • Adults: End of life care; whether to give life sustaining medical treatment
  • Children: End of life care; whether to give life sustaining treatment
  • The ‘Right to die’
Part III: Jurisdiction and Procedure
  • Jurisdiction: Procedure in medical treatment cases concerning incapacitated adults and children
Part IV: Other Specific Areas in Relation to Medical Treatment and the Law
  • Adult refusal of medical treatment: Non-consensual treatment
  • Medical treatment and the Mental Health Act 1983; restriction on deprivation of liberty under the Mental Capacity Act 2005; the interface between the MHA 1983 and the MCA 2005
  • Children: Consent or refusal of consent to medical treatment
  • Advance statements or ‘living wills’
  • Medical treatment other than for purely medical reasons, including the law relating to sterilisation, organ donation, fertilisation and embryology, surrogacy, abortion, scientific testing, gender recognition and female genital mutilation


"The book goes very far beyond simple consideration of issues of consent (although the first chapter on medical treatment and consent is worth the price of the book alone, as it provides an extremely clear outline of this often overly-complicated issue). 

It is divided into four parts: (1) general principles in relation to medical treatment and the law; (2) the right to life and the ‘right to die’; (3) jurisdiction and procedure in medical treatment cases concerning incapacitated adults and children; (4) other specific areas in relation to medical treatment and the law (covering such topics as non-consensual treatment and medical treatment other than for purely medical reasons.  Each of the sections provides a clear and above all practical guide to the key principles and to the case-law"

Read the full review 
Alexander Ruck Keene, Barrister and Honorary Research Lecturer at the University of Manchester


"The guidance provided by this book is both authoritative and detailed, which makes it especially valuable following the implementation in 2007 of the Mental Capacity Act 2005 and other relevant legislation.  Logically structured for ease of use, it has an extensive table of contents and index, as well as tables of cases, statutes, statutory instruments and international material.

Practitioners who recognize that this is an increasingly important area of law will welcome this new second edition, from Jordan Publishing, of what has become a highly regarded work of reference.  Whether experienced or inexperienced, family lawyers will no doubt consider it an essential purchase for the well-stocked professional library"

Read the full review
An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers

This book is intended as an introduction to the complex and rapidly developing area of medical treatment and the law in relation to the vulnerable, namely children and those adults who lack capacity.

Many factors have contributed to the developments in the law, including the advanced nature and choice of medical treatments now available, the need to listen to the wishes and feelings of children with increasing autonomy as young persons, the number of elderly persons fortunately now living longer, the need to the extent possible for independence and self-determination for vulnerable adults, whether lacking capacity or not, the increasing and welcome desire among patients generally to question medical decisions, as well the vexed issues arising from the sanctity of life, autonomy of competent decision-making and end of life care.

The issues arising, often involving principles of law, ethics and medical practice, may impact not only primarily of course on the patient but also upon a range of those concerned with the protection of the vulnerable, including the carer or carers of the adult or child concerned, social workers, the medical profession in its widest sense, the legal profession and the judiciary.

All of the above, including the courts, are having to navigate their way through the minefield of issues often arising in medical treatment cases, particularly in relation to questions of capacity, lack of capacity and consent. What is intended in this book is to provide practical guidance and assistance as to the approach taken by the courts on all of the varying material issues raised in relation to medical treatment and the law, the thread of which throughout is the question of ‘consent’.

Richard Harper
September 2014


Read full preface 
This is a much enlarged and substantially re-written revision of a book by Richard Harper originally published in 1999. Although in its fundamentals the law as described by our author was by then fairly well established, much has happened since, not least, of course, the implementation in 2007 of the much needed and long awaited Mental Capacity Act 2005. Now that the new jurisdiction of the Court of Protection has become an established part of the legal landscape, the publication of this valuable book is timely.

The author modestly describes his book as an introduction, but it is much more than that, as the detailed ‘Contents’ show. The author’s ambition is to provide assistance to all those, not just the lawyers, who work in this field. It is a difficult task to write a book which on such a complex subject is accessible to both lawyers and non-lawyers, but it is a task which he very successfully achieves.

The book deals comprehensively and illuminatingly both with the substantive law and – of equal importance to practitioners – with practice and procedure. The author deals deftly with the case-law, extracting for the reader in helpful detail both the facts of the cases he discusses and the principles to be drawn from them, and including useful extracts from the judgments. His book will be of equal use and prove a friendly guide both to the aspiring tyro and to the seasoned hand.

Sir James Munby 
President of the Family Division and President of the Court of Protection

17 September 2014

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