Juridification, medicalisation, and the impact of eu law: patient mobility and the allocation of scarce NHS resources

This article explores the relationship between EU Law and the allocation of scarce NHS resources in the context of the EU's objective of facilitating access to health care for patients within the EU. Focusing on the Watts case and the recently adopted EU Patients' Rights Directive, the article addresses the political and economic aspects of the implications of EU Law for, inter alia, domestic law, medicine, and the NHS. It does so through developing an analytical framework comprising the notions of juridification and medicalisation. Those notions, which are drawn here from the work of Jürgen Habermas, Ivan Illich, and Sheila McLean, are not only helpful as means of thinking through the nature of the specific EU laws considered in the article; by virtue of their broader focus on, and critique of, the welfare state, they offer an opportunity to reflect more generally on the implications of these laws for the role of the welfare state and medical and legal professionals in the development of the EU's internal market in health care services. Having undertaken this analysis, the article argues that, in order to capture the developments and implications of EU Law on patient mobility, it is necessary to update and partially reformulate the notions of medicalisation and juridification.     

Justins v The Queen: assisted suicide, juries and the discretion to prosecute

Juries are often a crucial protection for citizens against unjust or highly controversial laws. The decision whether to proceed with a prosecution rests on the discretionary powers of prosecutors. In cases where the community is deeply divided over right and wrong, it appears that there is, at times, a transference from the public of thwarted law reform aspirations which can create difficult tensions and expectations. This case commentary considers an appeal by Shirley Justins following her conviction for manslaughter by gross criminal negligence as a result of her involvement in the mercy killing of her partner, Mr Graeme Wylie. The morally unsettled nature of the charges brought against her, her own initial plea, the directions given to the jury by the trial judge and even the basis of her appeal resulted in a convoluted and complicated legal case. Spigelman CJ and Johnson J ordered a new trial, Spigelman CJ stating that it was open for a new jury to consider (a) if Mr Wylie lacked capacity; and (b) whether there was criminal involvement by one person in another's death. Simpson J found that further prosecution on the count of manslaughter would amount to an abuse of process and that an acquittal should be entered. This case highlights how fundamentally unsettled are the publicly much debated and persistently contentious issues of euthanasia, assisted suicide, the right of a person to die a dignified death and the way their capacity in that respect should be assessed. It perhaps asks us to reconsider the role of juries and the exercise of discretion by Directors of Public Prosecutions in areas of law where the community and law-makers are deeply and intractably divided.     

Rights,goals, and hard cases

Rights have two properties which prima facie appear to be inconsistent. The first is that they are conditional in the sense that one some occasions it is always justifiable for someone to act in a way which appears to be inconsistent with someone else's rights, such as when the defence of necessity applies. The second is that rights are indefeasible in the sense that they are not subject to being defeated our outweighed by utilitarian or policy considerations. If we view rules and the rights which they establish as being subject to a ceteris paribus clause, the form of which generates out the exceptions, the conditionality of rights becomes reconcilable with their nondefeasibility. Such a view of rules and rights would entail that the goals of the law and their orderings be considered as a part of the law. When so viewed, propositions about goals and their orderings become legitimate premises for legal reasoning, furnishing solutions to hard cases in the law of torts, without resort to balancing of interests or judicial discretion.