Medical Treatment and the Law: Issues of Consent (2nd Edition): Richard Harper (Jordans, 2014, £54)
This book, subtitled “The Protection of the Vulnerable: Children and Adults Lacking Capacity” is the second edition of a work first published in in 1999. The author, an experienced District Judge, comments in his introduction that the substance of the book is intended to be of assistance beyond lawyers and the judiciary to those working with the welfare and protection of the vulnerable. To this end, it is written in a deliberately simple (but far from simplistic) fashion and is (some might say blessedly) free from footnotes.
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.
Whilst not providing (nor, in fairness, pretending to provide) a substitute for detailed procedural guides such as the Serjeants’ Inn (now slightly elderly) work on Medical Treatment: Decisions and the Law (Bloomsbury, 2010) or for textbooks on medical ethics such as Mason and McCall Smith’s Law and Medical Ethics (OUP, 2013), the book would – and indeed – should sit on the bookshelf not just of ‘generalist’ lawyers needing a reliable introduction to the key issues involved in medical and healthcare decision-making but also of doctors seeking to ensure that they comply with the demands of the law. In this regard, it is perhaps of particular importance in breaking down the component parts of the crucial decision of the Supreme Court in Aintree v James so as to ensure that its import is properly recognised by both lawyers and clinicians.
All books such as this are at the mercy of developments and, whilst it is commendably up-to-date, I should perhaps note that to the chapter on jurisdiction and procedure should be added reference to the case of NHS Trust v FG, with its vitally important guidance on when (and how) applications relating to serious medical treatment should be brought to court, guidance going far beyond the obstetric interventions with which the case was ostensibly concerned. I would also note that the discussion relating to PVS and MCS needs to be read subject to the new guidance issued by Royal College of Physicians on Prolonged Disorders of Consciousness. Finally, I might also suggest that it would have been desirable to include a passing mention of the Convention on the Rights of Persons with Disabilities; whilst – at present – it remains a convention more hotly discussed in the abstract than applied on the ground, it is increasingly being referred to in the context of domestic decisions, and some of the most dramatic challenges that it poses to practitioners (of all kinds) lie in the fields of medical treatment.
These are but minor quibbles, though, speaking more to the need for the speedy production of a third edition than anything else, and overall this relatively modestly priced work is a soundly reliable primer for all those concerned with areas where, almost more than any other, the consequences of getting the law wrong can have severe and irreversible consequences.
Full disclosure: I am very grateful to Jordans for providing me with a copy of this for purposes of this (unpaid) review. I am always open to reviewing books in the area of mental capacity law and policy (broadly defined).