Dr Emma Cave's Publications
Books
(2011) Medicine, Patients and the Law Penguin
An incisive survey of the legal situation in areas as diverse as fertility treatment, patient consent, euthanasia and the definition of death, malpractice and medical privacy. Extensively revised and updated, this fifth edition covers the latest reforms of assisted suicide, the GMC, complaints and redress and new and proposed legislation such as the Human Fertilisation and Emryology Act 2008 and the Health and Social Care Bill 2011.
(2007) Medicine, Patients and the Law pp. xliv,541p Penguin
In this highly acclaimed and very accessible book, Margaret Brazier and Emma Cave provide an incisive survey of the legal situation in areas as diverse as fertility treatment, patient consent, euthanasia and the definition of death, malpractice and medical privacy. Medicine, Patients and the Law is the essential guide to help practitioners, students of law and medicine and the layperson find their way around this complex subject, and the extensive legislation and case-law pertaining to it. Extensively revised and updated, this fourth edition takes account of legal, social and technological changes, and covers the impact of recent legislation such as the Human Tissue Act 2004, the Medicine for Human Use (Clinical Trials) Regulations 2004; the Mental Capacity Act 2005, and the NHS Redress Act 2006 , as well as considering proposals to reform the law relating to embryo research and fertility treatment.
(2004) The Mother of All Crimes: human rights, criminalization, and the child born alive pp. vii,163p Ashgate
This book considers the appropriate response of the criminal law with regard to women whose acts or omissions in pregnancy cause the death or injury of the child born alive. It compares recent developments in English law with those in America, which has seen an enormous growth in litigation in the last two decades. The author examines the implications of the laws in both systems and also looks at the rights of the mother and child in relation to the obligations of the state to protect both of them.
Journal Articles
(2011) Maximisation of Minor's Capacity In: Child and Family Law Quarterly
Section 3(2) of the Mental Capacity Act 2005 requires doctors to take practical steps to help a person with impaired capacity to make a competent medical decision. This legal duty does not extend to minor’s under the age of 16. They must prove their competence where it is presumed in adults, and they can only make decisions in their best interests. Yet the General Medical Council’s End of Life Treatment and Care guidance (2010) requires doctors to maximise a patient’s capacity, and does not restrict its application to adults. This paper explores the implications of such a duty insofar as it applies to minors. If there is a duty to maximise a child’s capacity to consent then the same duty applies when a child withholds consent. A child’s competent decision to refuse treatment can be overruled in his best interests, but arguably the development of human rights increases the significance of capacity when determining best interests. If this is the limit of a competent child’s right to give or refuse consent, then it is important to ensure that the child has an adequate opportunity to demonstrate his capacity. In this paper I argue that there is much to gain from maximising a child’s capacity to consent, but there are also dangers that paternalism will creep in through the back door.
(2010) Seen But Not Heard: Children in Clinical Trials In: Medical Law Review 18 (1) pp. 1 - 27 oup
The Medicines for Human Use (Clinical Trials) Regulations put into effect the European Union Clinical Trials Directive 2001 , which aims to facilitate and harmonise standards in research across Europe. The Regulations apply only to ‘clinical trials of investigational medicinal products’ (CTIMPs). The author discusses the consent requirements which restrict the ability of competent minors to consent or assent. Additionally, concerns are raised regarding the risk benefit ratio applied in paediatric clinical trials. The Regulations may prove overly restrictive of research which is not of direct benefit to the research participants, to the detriment of child health generally.
(2009) Adolescent Consent and Confidentiality in the UK In: European Journal of Health Law 16 (4) pp. 309 - 331 Brill
In R (Axon) v Secretary of State for Health the Gillick competence test was confirmed. Commitment to childhood autonomy and privacy rights caused renewed academic criticism of the ‘refusal’ cases. This paper considers the form any changes to the law may take, and the potential consequences for the rights of parents and young people. Silber J.’s contention that parental Article 8 rights cease when the child makes a competent decision is potentially problematic if applied to refusal cases, especially in the context of the distinction between competence to consent to treatment and to the disclosure of information.
(2007) Clinical Audit and Reform of the UK Research Ethics Review System In: Theoretical Medicine and Bioethics 28 (3) pp. 181 - 203 Kluwer Academic Publishers
There is an international consensus that medical research involving humans should only be undertaken in accordance with ethical principles. Paradoxically though, there is no consensus over the kinds of activities that constitute research and should be subject to review. In the UK and elsewhere, research requiring review is distinguished from clinical audit. Unfortunately the two activities are not always easy to differentiate from one another. Moreover, as the volume of audit increases and becomes more formal in response to the demand for evidence-based practice in medicine, the overlap between research and audit grows more acute. Arguably, similar ethical standards and systems for ensuring that those standards are met should be applied regardless of whether or not a project is classified as research or audit. At a time when the research ethics review system in the UK is undergoing significant reform it is important that the opportunity is not missed to address the longstanding research-audit problem. We discuss suggestions for further reform that addresses this issue.
(2004) Book Review: Grubb's Principles of Medical Law In: Child and Family Law Quarterly pp. 465 - 469 Jordan Publishing Ltd.
Review of Grubb's Principles of Medical Law
(2003) Milgram and Tuskegee - Paradigm Research Projects in Bioethics In: Health Care Analysis 11 (1) pp. 27 - 40 John Wiley & Sons Ltd., Journals
(2002) New Governance Arrangements for Research Ethics Committees: Is facilitating Research Achieved at the Cost of Participants' Interest. In: Journal of Medical Ethics 28 (5) pp. 318 - 321 BMJ Publishing Group
(2002) C Foster: The Ethics of Medical Research on Humans In: The Modern Law Review 65 (3) pp. 476 - 477 Blackwell Publishers Ltd.
(2000) Should local research ethics committees monitor research they have approved? In: Journal of Medical Ethics 226 (5) pp. 330 - 333 BMJ Publishing Group
(1998) Substance abuse in pregnancy and the child born alive In: Anglo-American Law Review 27 (4) pp. pp.472 Tolley Publishing Co. Ltd.
Redress in the NHS In: Journal of Professional Negligence 2011 (27) pp. 139 - 158 Bloomsburyprofessional
The cost of clinical negligence litigation is rising year on year. In this era of austerity, a response is critical. In 2011 an NHS Redress Act scheme was introduced in Wales which will align procedures for complaints and restoration. A Scottish No Fault Compensation Review Group recommended in 2011 that tort based liability is abandoned. In England options are limited by virtue of the size and complexity of the NHS. The Government have proposed reform of civil litigation costs which will reduce the legal costs for the NHS by around a third, but the Health Committee issued a report in June 2011 warning that ‘preservation of access to justice will be the yardstick by which these proposals will be judged’. In 2003 the Chief Medical Officer (CMO) showed that civil litigation costs reform alone would not adequately balance procedural and substantive justice. A tort based, fast track, low value clinical negligence scheme was proposed. The NHS Redress Act 2006 enabled a scheme to be implemented but England failed to act. Meanwhile reforms of the complaints process, professional and institutional regulation and legal requirements of openness attempted to improve NHS redress. This paper considers firstly whether the NHS reforms combined with the civil litigation costs reforms address the CMOs concerns over clinical negligence litigation. Secondly, I consider two proposed fast track schemes – Lord Justice Jackson favours an NHS Redress Act scheme, and Lord Young favours an extension of the fast track Road Traffic Act (RTA) Personal Injury scheme implemented in 2010. I compare the two with each other and with the schemes proposed in Wales and Scotland. The English fast track schemes pose advantages over civil litigation cost reform alone, but fall significantly short of the CMO’s 2003 recommendations.
Minors’ Capacity to Refuse Treatment: A Reply to Gilmore and Herring In: Medical Law Review 2012 OUP
Re R and Re W allow a parent to consent to treatment a competent minor refuses, but the cases have not been tested post-Human Rights Act 1998. Gilmore and Herring offer a means by which they might be distinguished or sidelined. They interpret Gillick to say that in order to consent a minor need only have a full understanding of the particular treatment. They argue that the minors in Re R and Re W were refusing all treatment which requires a separate assessment of capacity– an assessment which was not made. We fear that this distinction would not be workable in clinical practice and argue that their interpretation of Gillick is flawed. From a clinician’s point of view, competence cannot always be judged in relation to a specific treatment, but instead must relate to the decision. We show that a decision can incorporate more than one treatment, and more than one decision might be made about one treatment. A minor’s understanding of a specific treatment is not always sufficient to demonstrate competence to make a decision. The result is that whilst there might be situations when a parent and a minor both have the power to consent to a particular treatment, they will not share concurrent powers in relation to the same decision. Consequently a challenge to Re R and Re W, if forthcoming, would need to take a different form. We emphasise the necessity to minimise the dichotomy between legal consent and how consent works in medical practice.
Contact Details
- Tel: 0113 343 5044
- Email: E.G.G.Cave@leeds.ac.uk