Current debates on adolescent gender-affirming care often revolve around questions of decision-making capacity and informed consent. Rather than asking whether adolescents are capable of providing informed consent, this article takes a different starting point by examining the assumptions embedded in the medico-legal model of informed consent itself and how these play out in clinical practice. Drawing on qualitative interviews with transgender youth and clinicians in the Netherlands, as well as observations of multidisciplinary team meetings, we analyze the tensions that arise concerning informed consent and the clinical realities of adolescent gender-affirming care. We show that informed consent becomes entangled with diagnostic assessment, treatment indication, and the evaluation of readiness, resulting in a form of normative overburdening that exceeds its conventional medico-legal function. We argue that this overburdening reflects a deeper misalignment between the medico-legal model of informed consent and the processual character of gender becoming. We conceptualize this misalignment along three interrelated dimensions: ontological, epistemic, and temporal. Together, these reveal how informed consent comes to depend on forms of subjectivity, knowledge, and temporal certainty that cannot be fully established in the context of this care practice. Instead of treating this as a problem of adolescents’ decision-making capacity or of gender-affirming care itself, we call for rethinking informed consent under conditions in which subjectivity, knowledge, and futures remain inherently in the making.
The article proposes a framework for understanding personhood in the context of cognitive decline, called the persisting evolving self, emphasising selfhood and continuity. It uses the new Assisted Decision-Making (Capacity) Act 2015 (ADMCA) in Ireland as a vehicle through which this way of conceptualising the self, and the rights assigned to it, can be assessed. The case study of ‘Martha’, who has dementia, is used to highlight the development of the law in Ireland from the Ward of Court system to the support-based tiered mechanisms inherent in the Act. It contends that the ADMCA involves a powerful and empowering paradigm shift from best interests standards to a rights-based approach. This new approach is based on the concepts of autonomy, support and will and preferences. The article evaluates the ADMCA through the vista of Alan Gewirth’s Principle of Generic Consistency (PGC). Furthermore, the practical realities of the Act’s tiered support mechanisms are balanced with people’s lived experiences of diminishing capacities, as understood within the PGC’s concept of agency. The persisting evolving self builds upon and reconceptualises the Gewirthian concept of ‘self-fulfilment’.
Prosecutions for healthcare gross negligence manslaughter (GNM) raise a persistent tension. A strict focus on individual culpability may obscure systemic failures that shape clinical work, while an exclusive focus on systemic failure may appear to weaken personal accountability. Restorative justice has been proposed as a complementary mechanism in England, yet the existing proposals emphasise process design and risk management without offering clear normative criteria for distinguishing individual fault from systemic contribution. This article develops a compassion-based restorative approach for healthcare GNM cases involving systemic failure. Drawing on Martha Nussbaum’s account of compassion as structured by three judgements (seriousness, nondesert, and the eudaimonistic judgement), it treats compassion as a normative discipline for a restorative approach that runs alongside England’s criminal process. The approach does not revisit the legal causation and culpability assessments that underpin liability under the Adomako framework. Instead, it focuses on normative criteria and shows how compassion can constrain what may be forgiven or negotiated, and how it can guide the allocation of accountability and remedial duties between individuals and healthcare systems. The article specifically applies the judgement of nondesert through two practical questions: whether the clinician has continued this behaviour as a matter of habit or choice, despite being educated, counselled, and informed by a designed system, and whether the clinician is a victim of the poorly managed healthcare system or poor working conditions. In this way, the framework resists demonisation, avoids impunity, and redirects attention towards prevention through actionable institutional responsibility.
Despite strong support for health research in the UK, many people currently opt not to share their health data because they do not trust that their data will be handled appropriately. This lack of trust is widely acknowledged but what is missing from the literature is a theoretical understanding of what underlies this lack of trust. This article presents an original, empiricallybased account of the source of this lack of trust based on interviews conducted with those who were unwilling to share their GP data with NHS Digital's General Practice Data for Planning and Research (GPDPR) programme. The participants told us that they did not feel the data was being treated as 'my data'. In this article, we explore what this concept means to our participants and argue that those responsible for sharing health data need to demonstrate commitment to patients' values and interests as well as data security.
The United Kingdom Supreme Court (UKSC) decision in Abbasi and another v Newcastle upon Tyne Hospitals NHS Foundation Trust; Haastrup v King’s College Hospital NHS Foundation Trust [2025] UKSC 15 is explored in this case commentary. The UKSC clarified the legal basis and duration of reporting restriction orders that protect clinicians’ anonymity in cases where disputes exist in relation to the withdrawal of life-sustaining treatment of children. The commentary evaluates the manner in which the court treats the relationship between the court’s inherent jurisdiction, the Human Rights Act 1998 and the competing rights under the European Convention on Human Rights, notably Articles 8 (the right to respect for private and family life) and Article 10 (freedom of expression). It is now clear that continued anonymity must be based on established domestic causes of action and must normally be limited in time. However, it is contended that the UKSC has adopted an excessively formalistic approach to risk. By stressing that individualised evidence of harm must exist before anonymity can be extended, the UKSC’s approach does not sufficiently recognise the anticipatory and systemic risks that clinicians face, especially in an era of online harassment and social media. It is concluded in the commentary that, even though the UKSC has strengthened constitutional coherence and the principle of open justice, important questions about how the law ought to respond to foreseeable, collective harms in healthcare remain unresolved.
South African law recognises the evolving capacity of minors to consent to medical treatment. This is manifested in the Children’s Act 2005 which governs minors’ rights and determines that children aged 12 years and above are presumed to have the capacity to consent to medical treatment provided they are of sufficient maturity to understand its nature and consequences. Although the word ‘maturity’ appears repeatedly in the Children’s Act, it does not provide a definition or guidance on how maturity should be determined. This article therefore, first, discusses the meaning of ‘maturity’, ‘sufficient maturity’, and related terminology and, second, elucidates on the role of brain development in the determination thereof in order to propose foundational elements regarding evidence-based guidelines for establishing whether the legally requisite ‘maturity’ to consent to medical treatment is present. The discussion is informed by South African and foreign case law, relevant regulatory instruments, human rights considerations, and literature on child brain development and consent.
This study explores how legal experts and physicians ensure the autonomy of individuals with dementia when assessing the need for legal guardianship and appointing guardians. Through interviews with 20 legal experts and 30 physicians, and thematic analysis, the research identified key analytical groups. Legal experts focus on (1) Ascertaining the individual’s views and (2) Minimising interference with autonomy. Physicians emphasise (1) ascertaining the individual’s views, (2) Supporting the realisation of autonomy and (3) Providing accurate information on the legal process. The study found that legal experts strongly respect autonomy, sometimes even deviating from strict legal requirements to ensure that individuals with dementia are heard and their opinions considered during court proceedings. Although physicians generally stress the patient’s autonomy, they prioritise protecting the individual more than legal experts.
In 2020, the German Constitutional Court (Bundesverfassungsgericht) issued one of the most autonomy-centred rulings on end-of-life law worldwide, establishing a broad ‘right to a self-determined death’ while declaring the former regulation of suicide assistance unconstitutional. This article provides an update on the current situation in German end-of-life law and explains why the right to a self-determined death developed by the Bundesverfassungsgericht serves as a core principle for western constitutional systems. The article pays particular attention to an issue that is highly topical in the current end-of-life debate in and outside Germany – assisted suicide and mental disorders – and outlines what can be learned from the Constitutional Court’s ruling about this particular issue.
Nasogastric tube feeding may be imposed on adults with anorexia nervosa without their consent. Although it can preserve life, it can also cause significant and lasting distress, and it is widely accepted that the intervention should be employed only as a last resort. However, the concept of last resort remains insufficiently defined. Clinical guidance and case law in England and Wales use the term to guide decision-making, but the thresholds by which a particular action can be considered a last resort are varied and ambiguous. Informed by human rights principles, this article articulates the relevant thresholds for last resort decisions relevant to detention, restraint, and high-risk or speculative treatments, clarifying operative meanings by way of a typology.
Should a lower standard of due care apply to healthcare providers facing scarce resources? We analyse tort law in its capacity to provide deterrent incentives to potential tortfeasors and to spread accident losses that were not avoided. The fact that resources in healthcare are limited, among others due to budget restraints, affects the necessary weighing of costs and benefits of precautionary measures. Limited resources may force healthcare providers to choose between treating more people with less care or fewer people with more care. We argue that limited resources provide a preference for a negligence rule over strict liability, because otherwise, part of the (limited) budget would be spent on tort damages for losses which were too expensive for society to prevent. A reversed burden of proof addresses information problems of the victims. Furthermore, regulation and medical guidelines are important in providing desirable behavioural incentives to avoid accidents.
Recent cases, Re Z (Unlawful Foreign Surrogacy: Adoption) and Mr K & Anor v Mr Z & Anor , highlight the potential impact of intended parents’ age on judicial decisions regarding parenthood following surrogacy. Intended parents may establish legal parenthood through a parental order or an adoption order, neither of which imposes an upper age limit. When deciding whether to grant such orders, the courts are under a statutory obligation to have the child’s welfare as the paramount consideration. This commentary examines whether, in light of these cases, the child’s welfare could demand an upper age limit on intended parents. By analysing age-based restrictions in other parenting contexts and the Law Commissions’ recommendations on surrogacy law, it argues that a strict upper age limit would be inappropriate. However, greater recognition of age as a relevant welfare consideration is necessary in judicial decision-making.
The use of artificial intelligence (AI) in healthcare may, notwithstanding its potential benefits, result in harm to patients from allegedly negligent acts or omissions by hospitals and medical doctors. In such circumstances, how should the principles in the tort of negligence (duty of care, breach, causation, remoteness of damage, and defences) respond to AI innovations in healthcare? In particular, how may the standard of care expected of hospitals and medical doctors be informed by regulatory guidelines? We refer to case law precedents and regulatory guidelines on the roles and responsibilities of doctors and hospitals as AI implementers. Importantly, they prompt further reflection and consideration as to how regulatory guidelines can impact the application of judge-made principles in negligence in connection with, for example, the reliance on medical AI in clinical practice, the disclosure of AI usage and risks to patients and the challenges posed by the opacity and non-explainability of medical AI.
The article examines the failure of section 17 of Hong Kong’s Human Reproductive Technology Ordinance (Cap. 561) to criminalise commercial surrogacy, despite clear legislative intent to that effect. Through an in-depth analysis of the legislative debates and a series of illustrative vignettes, it demonstrates that section 17 only renders unlawful the act of making or receiving payments for negotiations leading to a commercial surrogacy arrangement, rather than the act of entering into such an arrangement itself. Such predicament stems from a flawed process of legislative transplantation. Section 17 was modelled on section 2(1) of the United Kingdom’s Surrogacy Arrangements Act 1985, the primary aim of which was to combat the proliferation of intermediary surrogacy agencies, instead of outlawing the practice of commercial surrogacy itself. Incomplete understanding of this legislative context likely led the drafters to misjudge the Surrogacy Arrangements Act 1985 as a suitable model for transplantation into the Hong Kong context. The article underscores the importance of careful legislative transplantation, and how crucial it is that law drafters and legislators be attuned to the original intent, domestic policy, and socio-legal context of the foreign rule being considered.
This article examines the development of sanctioning practices by disciplinary bodies in the United Kingdom in response to medical error using the Bawa-Garba case as a benchmark for analysing reform. It combines statistical analysis of General Medical Council (GMC) and Medical Practitioners Tribunal Service (MPTS) sanctioning data from 2019 to 2024 with qualitative case studies to identify changes in regulatory responses after Bawa-Garba , including a reduction in investigations but an increase in the severity and probability of sanctions when cases proceed. By analysing selected MPTS decisions related to clinical failings, the study highlights an increased focus on contextualised culpability, remediation, and the systemic factors contributing to errors rather than outcome. The article draws on Merry and Brookbanks’ error/violation framework aswell as Cribb, O’Hara and Waring’s justice typology, to advocate for a ‘qualified blame’ approach to medical error as an alternative to retributive or ‘no blame’ approaches. This approach, focused on contextualising errors, promotes openness, learning, and continuous improvement in patient safety thereby contributing to the development of a ‘just culture’.
On 17 June 2025, Members of Parliament voted to accept New Clause 1 (NC1) to the government’s Crime and Policing Bill. If enacted, NC1 will prevent the investigation, prosecution, and conviction of women who terminate their own pregnancies in England and Wales. In the light of a recent increase in investigations, prosecutions, and convictions, the importance of this reform must not be understated. Nevertheless, existing legal hurdles to accessing abortion will continue to exist. Substantive reform of the Abortion Act 1967 is required to advance reproductive rights, but this cannot be achieved through an amendment to an existing Bill. Such amendments must be narrowly defined to succeed, as NC1 demonstrates. Moreover, there are very few viable alternative routes to reform available given the government’s reluctance to take responsibility for abortion law reform. Therefore, it is currently virtually impossible to achieve comprehensive reform of English and Welsh abortion law.
