José Miola and Louise Austin (eds) Research Handbook on Medical Consent (Elgar, 2026, 485 pp, hardback £240 / ebook c£48)
Having spent a significant amount of time recently working with the Association of Anaesthetists on their (imminently arriving) updated guidance on consent, I re-read this book with particular interest. Albeit not necessarily in that order, chapters in this book enable interrogation of the entire consent process which (in one specific area) that guidance seeks to cover: from consideration of how doctors are to formulate what options to put to patients, to the theory, purpose and practice of relaying material information to their patients, and to negotiation with patients about their choices. Importantly, and whilst it has detailed consideration of technical aspects of consent, it also allows interrogation of the wider context, including the point of clinical guidance and its relationship with the law, and as to whether the goal that is being sought is ‘autonomy’ or something else. And it allows the reader to consider the question not just from an Anglo-Welsh perspective, but drawing on comparative materials including the position in Australia and Singapore. Importantly, the contributors do not speak with one voice, and it is to the credit of the editors that a broadly ‘pro-Montgomery and anti-McCulloch’ volume includes a strident dissent to the effect that it was the former which was incorrect.
Nor is the focus limited solely to ‘conventional’ interactions between doctors and patients: the volume features stimulating contributions about such matters as consent to research and the use of health data, the complexity of navigating consent in the context of gender-affirming treatments, and – a chapter which rang very true in terms of its scenarios – a chapter about consent in the emergency medicine setting. The Mental Capacity Act 2005 is also the subject of sustained interrogation in the context of the treatment of patients with anorexia: I would wholeheartedly agree with the authors of the chapter that rumours of the Act being empowering have been greatly exaggerated (but regret that the length of time it takes for a volume of this size to be produced meant that they were unable to address the Patricia case, which is, perhaps, the ultimate ‘hard case.’)
It is never entirely fair to regret what is not in a book, as opposed to celebrating what is in it, but given the zeitgeist, the absence of a chapter discussing consent in the context of assisted death was in some ways striking. Or does this reflect the fact that for all the messaging that assisted death is a part of healthcare, the provision of such assistance is not ‘medical treatment,’ such that the conventional tools for interrogating discussions between medical practitioners and their patients break down at that point?
Overall, this is an extremely high-quality book, valuable to audiences of many disciplines, and providing fertile ground both for further research and further development of the law and medical practice.
Murray Earle, Scottish Medical Law Essentials (2nd edition) (Edinburgh University Press, 2025, 239 pp, paperback / ebook: £19.99)
Perhaps ironically, given that both Montgomery and McCulloch originated from Scotland, the Research Handbook reviewed immediately above did not include a contributor from that jurisdiction. As I repeatedly have cause to seek to flag on working parties drawing up guidance, the Scottish framework around medical law is in many ways very different to the Anglo-Welsh (the Association of Anaesthetists guidance noted above will include an updated version of the comparative table seeking to set out the differences, as well as the position in Northern Ireland and Ireland). I was therefore very pleasantly surprised to be sent a copy of Murray Earle’s Scottish Medical Law Essentials (2nd edition) by the author, a lecturer in Medical Law at the University of Edinburgh. It does exactly what it promises, setting out concisely the key features of Scottish medical law across the whole spectrum. As that law has developed in (sometimes considerable) tension with the law south of the border, the book frequently has cause to compare and contrast the approaches. For present purposes, one aspect to draw particular attention to is the approach to those who do not have capacity to make decisions about their medical treatment. It is fundamentally different to the position in England & Wales: for instance, and although it appears that even the judiciary in Scotland sometimes forget, the concept of ‘best interests’ has no place in the Adults with Incapacity (Scotland) Act 2000. And, as Earle hints, and as I have discussed further in this shedinar with Dr Jonathan Brown, it is far from obvious that that the Anglo-Welsh caselaw relating to the treatment of children can simply be transposed north of the border.
The book, therefore, is one that is not just of value for students studying medical law in Scotland, as it pitches itself on its back. It is equally of value for anyone in England & Wales (whether that be medical professional, lawyer or policy-maker) understanding why and how Scottish law is distinctive.
Full disclosure: I was provided with an advance copy of the Research Handbook at proof stage to write an endorsement, and a further copy by one of the editors on publication. I was also provided with a copy of Scottish Medical Law Essentials by the author. I am always happy to consider reviewing books relating to mental capacity law (broadly conceived).
