Medical law review
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Comparative Study
'If it ain't broke, don't fix it?': scandals, 'risk', and cosmetic surgery regulation in the UK and France.
The recent PIP scandal that affected patients worldwide, and received extensive media coverage, led to concerns being felt by patients about the 'risks' of cosmetic surgery. Theories about regulation and risk refer to societies such as those in the West becoming more risk averse. Regulation, in turn, has come to be seen as an instrument to solve a problem for a community seen to be or which perceives itself to be at risk. ⋯ France enacted the Kouchner law in 2002 and the UK government published the Keogh Report in April 2013. A comparison is made of these to establish whether the UK can learn from the French legislation when it comes to drafting actual regulation in the future, perhaps in 2014. Finally, some arguments are made about whether risk aversion may make better law.
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This article seeks to establish what lessons might be available to the English health care sector following enactment of the Health and Social Care Act 2012 from the Dutch experience of introducing market competition into health care via a mandatory health insurance scheme implemented by for-profit insurance companies. The existence of the Beveridge NHS model in England, and a Bismarckian insurance system in The Netherlands perhaps suggest that a comparison of the two countries is at best limited, and reinforced by the different Enthoven-inspired competitive models each has adopted. ⋯ The article examines the situation in England following the HSCA 2012 and The Netherlands following the 2006 reforms before analysing two areas of common ground: the focus in both countries on competition on quality (as opposed to price) and integrated care, which is assuming ever greater significance. We suggest that our combined insights (as a health lawyer and competition lawyer respectively) coupled with a comparative approach create a novel contribution to current calls for a wider public debate about the real role of markets in health care over and above simple characterisation as a force for good or bad.
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A series of inquiries and reports suggest considerable failings in the care provided to some patients in the NHS. Although the Bristol Inquiry report of 2001 led to the creation of many new regulatory bodies to supervise the NHS, they have never enjoyed consistent support from government and the Mid Staffordshire Inquiry in 2013 suggests they made little difference. ⋯ Apart from the ethical imperative, the need for effective governance is driven both by the growth in information available to the public and the resources wasted by ineffective systems of care. Appropriate solutions depend on an understanding of the perverse incentives inherent in each model and the need for greater sensitivity to the voices of patients and the public.
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Law has played an important, but largely constitutive, role in the development of the public health enterprise. Thus, law has been central to setting up the institutions and offices of public health. The moral agenda has, however, been shaped to a much greater extent by bioethics. ⋯ To counter the marginalisation of women's interests, this article argues that Amartya Sen's capabilities approach has much to contribute to the framing of public health law and policy. Sen's approach provides an evaluative and normative framework which recognises the importance of both gender and health equity to achieving social justice. We suggest that domestic law and international human rights provisions, in particular the emerging human right to health, offer mechanisms to promote capabilities, and foster a robust and inclusive conception of social justice.
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Advances in kidney transplantation over the past six decades have been impressive, but have not eliminated the significant variability in outcome related to donor organ quality. Organ shortage means that, in addition to 'standard' deceased donor kidneys (SD), 'non-standard donor' (NSD), 'expanded criteria donor', or 'marginal' kidneys, which fail to meet standard criteria and are often associated with less good outcomes, are now being transplanted into selected recipients as a means of increasing the donor pool. A similar, but less-documented, practice has developed in living donation. ⋯ However, the Human Tissue Acts of 2004 and 2006 (Scotland), which govern organ donation and transplantation in the UK, expressly require individual consent or authorisation in the decision to donate. This emphasis on individual autonomy appears to chime with prevailing public opinion. However, the sense of medico-legal security gained by uncritical observance of the existing law and of directives published under its authority may be an obstacle to the development of a system which adequately meets the needs of recipients while safeguarding donor autonomy.