Samantha Halliday's Publications
Autonomy and Pregnancy: A Comparative Analysis of Compelled Obstetric Intervention (Routledge, 2016),
Technology has come to dominate the modern experience of pregnancy and childbirth, but instead of empowering pregnant women, technology has been used to identify the foetus as a second patient characterised as a distinct entity with its own needs and interests. Often, foetal and the woman’s interests will be aligned, though in legal and medical discourses the two ‘patients’ are frequently framed as antagonists with conflicting interests. This book focuses upon the permissibility of encroachment on the pregnant woman’s autonomy in the interests of the foetus. Drawing on the law in England & Wales, the United States of America and Germany, Samantha Halliday focuses on the tension between a pregnant woman’s autonomy and medical actions taken to protect the foetus, addressing circumstances in which courts have declared medical treatment lawful in the face of the pregnant woman’s refusal of consent. As a work which calls into question the understanding of autonomy in prenatal medical care, this book will be of great use and interest to students, researchers and practitioners in medical law, comparative law, bioethics, and human rights.
‘Protecting human dignity: reframing the abortion debate to respect the dignity of choice and life’, Contemporary Issues in Law, 13.4 (2016), 287-322,
Repository URL: http://eprints.whiterose.ac.uk/99751/
The Abortion Act 1967 constructs women as patients seeking care, rather than as women choosing abortion, portraying them as vulnerable subjects in need of assistance to make a responsible decision. This article reviews recent proposed women-protective amendments to the Abortion Act focussing upon the proposed introduction of a requirement that women be offered independent counselling. It argues that the issue of abortion should be reframed as a matter of the protection of human dignity, rather than as a conflict between the woman’s right to autonomy and the life of the foetus and, drawing comparatively upon case law from Germany and the United States of America, considers the way in which the U.S. Supreme Court and the Bundesverfassungsgericht have constructed human dignity in the abortion context. Ultimately it is argued that reproductive exceptionalism must end and that by locating the regulation of abortion within a framework of respect for dignity, it is possible to prioritise choice so that the woman’s dignity, which necessarily includes respect for her autonomy and bodily integrity, is not subject to the whims of the medical profession. It is suggested that dignity operates as a lens through which the woman’s claim to autonomy and the interest in foetal life are best viewed, enabling the conflicting interests to be reconciled and simultaneously protecting foetal life and the woman’s autonomy and bodily integrity. The protection of human dignity does not require that these interests be given an equal degree of protection throughout pregnancy and thus it is argued that at least during the first trimester a lower level of protection is demanded in respect of the foetal life, whilst the woman’s right to autonomy and bodily integrity are given precedence. With increased gestation dignity will require that the balance is adjusted so that from viability the foetal life should be prioritised over the woman’s autonomy, albeit with exceptions for risks to her health and life.
‘Comparative reflections upon the Assisted Dying Bill 2013: a plea for a more European approach’, Medical Law International, 13.2-3 (2013), 135-167,
DOI: 10.1177/0968533213508129, Repository URL: http://eprints.whiterose.ac.uk/76573/
Whilst assisted dying remains topical, a number of courts and committees have considered the potential legalisation of active voluntary euthanasia, and/or physician-assisted suicide, but concluded that legalisation should not occur. Significantly this conclusion is attributed not simply to concern to uphold the sanctity of life, but more commonly the reasons given stress that it would simply not be possible to legalise assisted dying whilst incorporating sufficient safeguards within the legislation to protect the vulnerable. This article considers the way in which the principle of dignity has been asserted to demand both that a person has a right to die with dignity (where dignity is constructed as entailing a choice to die with medical assistance) and that the prohibition of assisted dying be maintained in order to ensure the dignity of the person, regardless of whether that person is disabled or terminally ill. It assesses the validity of that argument by evaluating the safeguards incorporated into the Assisted Dying Bill 2013 and reflecting upon the experience of the statutory regulation of assisted dying in other jurisdictions: the Netherlands, Belgium and Oregon. It is concluded that it is possible to construct legislation authorising assisted dying in strictly controlled circumstances and that far from exposing the vulnerable to the risk of abuse, such regulation would provide much greater protection of all lives than the current system based upon an absolute prohibition of killing.
‘Legislating to give effect to precedent autonomy: comparative reflections on legislative incompetence’, Medical Law International, 11.2 (2011), 127-171,
DOI: 10.1177/096853321101100202, Repository URL: http://eprints.whiterose.ac.uk/76574/
This article considers the legislative responses to the perceived need to provide for the binding force of precedent autonomy in Austria, Germany and England. It reflects comparatively upon the impact of these responses in considering to what extent it is possible to make an anticipatory refusal of consent to medical treatment that will bind healthcare professionals, as opposed to being merely a factor to be considered in determining the patient's best interests or presumed will. It concludes that each of the three legislatures has introduced significant hurdles to the creation of a binding anticipatory decision, ensuring that medical discretion and the presumption in favour of life will be preserved in the majority of cases, and in so doing undermines the very concept of precedent autonomy.
‘Advance decisions and the Mental Capacity Act’, British Journal of Nursing, 18.11 (2009), 697-699,
‘User and carer involvement in child and adolescent mental health services – a Norwegian staff perspective’, Journal of Administration & Policy in Mental Health & Mental Health Services Research, 36.4 (2009), 265-277,
It has been suggested that user involvement in heath care leads to improved services. The aim of the study was to explore attitudes towards user involvement of staff employed in Norwegian Child and Adolescent Mental Health Services (CAMHS). Most of the investigated mental health service staff expressed the opinion that users should be involved in the planning of their own treatment and generally have a positive attitude towards user involvement. Scepticism was related to some aspects of involvement and does not contradict their generally positive attitude towards user involvement.
‘A comparative approach to the regulation of human embryonic stem cell research in Europe’, Medical Law Review, 12.1 (2004), 40-69,
‘The Regulated Gene: New Legal Dilemmas’, Medical Law Review, 12.1 (2004), 2-13,
‘Decision - Making At The End Of Life and The Incompetent Patient: A Comparative Approach’, Medicine & Law, 22.3 (2003), 533-542,
This article adopts a comparative approach to assessing the manner in which decisions to withdraw/withhold life-prolonging treatment are made in relation to previously competent patients without a legally effective advance directive or a proxy decision-maker, considering the approaches adopted by the courts in England & Wales and Germany: the best interests and ‘presumed will’ approaches respectively. Due to the inherent drawbacks associated with each approach it is concluded that the best way forward would be for both jurisdictions to adopt a mixed approach, allowing the autonomy model to temper the best interests approach, recognising that the patient is an individual rather than simply an object of concern.
‘Die Regelung von Nichtaufnahme und Abbruch einer medizinischen Behandlung am Lebensende in Deutschland und England’, Juristen Zeitung, 15/16 (2002), 752-763,
This article analyses the law relating to withholding and withdrawing life-prolonging medical treatment in Germany and England & Wales. Recent case law from both jurisdictions is considered and contrasted with jurisprudence from the United States of America. Whilst all three jurisdictions recognise the ability of a competent patient to refuse life-prolonging treatment, it is argued that the models of decision-making adopted in relation to patients lacking capacity are inherently flawed. It is suggested that where the patient lacks capacity, neither the autonomy model of decision-making (encompassing the presumed will approach adopted in Germany and the substituted judgement approach adopted in the USA), nor the best interests model (adopted in England & Wales) can adequately protect the interests (particularly the ‘critical’ interests) of the affected individual.
‘Herausgabenansprüche des Besitzers: BGH 11 November 1997, JZ 1998, 685’, European Review of Private Law, 8.3 (2000), 499-506,
‘But which interpretation favours the consumer? - The use of regulation six of the Unfair Terms in Consumer Contracts Regulations 1994’, Consumer and Commercial Contracts, 1 (1997), 9-11,
‘The Role of Patient Autonomy in Medical and Legal Approaches to HIV-antibody Testing in the United Kingdom’, Cambrian Law Review 1995, 101-114,
This article considers whether there is ever justification for performing a HIV-antibody test without the patient’s consent, for example because a surgeon fears for his or her own safety, or in order to provide epidemiological information regarding the spread of HIV infection within the United Kingdom.
‘Regulating active voluntary euthanasia: what can England & Wales learn from Belgium and the Netherlands?’, in Contemporary Issues in Health Law and Ethics, ed. by Garwood-Gowers A (Elsevier / Butterworths, 2005), 269-308,
‘A comparative analysis of some of the legal parameters of the right to life and the right to privacy in the regulation of abortion’, in Human rights in transition, ed. by McEldowney JF and Weick G (Peter Lang Pub Inc, 2003), 85-105,
This chapter considers the manner in which the constitutional rights to life and to privacy (autonomy) have been construed in relation to abortion in the Federal Republic of Germany, facilitating the drawing of conclusions about the ways in which the European Convention on Human Rights might impact upon the regulation of abortion in England and Wales.
‘Extending Autonomy Past The Onset Of Incapacity: Legal And Attitudinal Aspects Of Advance Directives’, in Book of Abstracts of the 18th World Congress on Medical Law ([n.pub.], 2010), 94-95 18th World Congress on Medical Law, Zagreb, Croatia, 08/08/2010 - 12/08/2010,
‘User and carer involvement in child and adolescent mental health services – a Norwegian staff perspective’, in Chinese Medical Journal ([n.pub.], 2010), 2, 161-161 International Congress for Child and Adolescent Psychiatry and Allied Professions, Beijing, 01/01/2010,
‘Undermining Precedent Autonomy: Lessons From The Legislatures Of England & Wales, Austria And Germany’, in Book of Abstracts of the 18th World Congress on Medical Law ([n.pub.], 2010), 95-96 18th World Congress on Medical Law, Zagreb, Croatia, 01/01/2010 - 01/01/2010,
‘User And Carer Involvement In Child And Adolescent Mental Health Services: A Norwegian Staff Perspective’, in Book of Abstracts of the 18th World Congress on Medical Law ([n.pub.], 2010), 185-186 18th World Congress on Medical Law, Zagreb, Croatia, 01/01/2010,
‘Decision-Making at the End of Life: a Comparative Approach’, in World Medical Law Association Book of Proceedings, 14th World Congress on Medical Law ([n.pub.], 2002), 337-342 14th World Congress on Medical Law, Maastricht, Netherlands, 01/01/2002,