FEMINIST PERSPECTIVES ON HEALTH CARE LAW CP Cavendish Publishing Limited London • Sydney FEMINIST PERSPECTIVES ON HEALTH CARE LAW Edited by Sally Sheldon and Michael Thomson both of the Law Department, Keele University CP Cavendish Publishing Limited London • Sydney First published in 1998 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom. Telephone: 44 (0) 171 278 8000 Facsimile: 44 (0) 171 278 8080 E-mail:
[email protected] Visit our Home Page on http://www.cavendishpublishing.com © Cavendish Publishing 1998 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyright Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the permission in writing of the publisher. Sheldon, Sally Feminist perspectives on health care law. – (Feminist perspectives on law) 1. Medical laws and legislation – Great Britain 2. Feminist jurisprudence – Great Britain I. Title II. Thomson, Michael 344.4’1’041’082 ISBN 1 85941 397 8 Printed and bound in Great Britain SERIES EDITORS’ PREFACE Anne Bottomley and Sally Sheldon This book is the first in a series of collections which gather together feminist perspectives on different areas of the law curriculum. There is now a large and ever-expanding body of literature on feminist perspectives on law. Many law departments teach courses under the title of ‘women and law’, ‘gender and law’, ‘feminist perspectives on law’ or (more adventurously) ‘body politics and law’. The task which has inspired this series of books is to explore the contribution which feminists could make to an understanding of the foundational subjects of law and other popular optional subjects – to break out of the ghetto of the discrete third year option and infiltrate the mainstream of the law curriculum. This refusal of ‘ghettoisation’ is also relevant within disciplines. For that reason, a scan down the contents list of this book might bring some surprises. Whilst this volume includes new perspectives on the kinds of subjects which have been of interest to feminists for some time, these sit alongside subjects which are terra (relatively) incognita including: administrative law, medical research, confidentiality, medical negligence, and death and dying. In all these cases, it is shown that a feminist perspective has something new to say. Moreover, the contributors to this volume would argue that feminism should not only be of interest to women. Rather, the lawyer who ignores the feminist critique will consequently have an impoverished understanding of the legal situation as it concerns both women and men. The series editors would like to thank Cavendish Publishing for their support in producing this project and all our colleagues, in our own institutions and elsewhere, who have given us such encouragement and help in this project. v FOREWORD IS THE PATIENT POSITION INEVITABLY FEMALE? Katherine O’Donovan Feminist jurisprudence has altered the way in which some traditional areas of the legal curriculum are researched, taught and understood. Can it do the same for health care law? The essays in this collection suggest that the answer is yes. This answer is not confined to the ‘reproductive ghetto’,1 that is to issues of gender and physical differences, of particular female conditions, of uteri and ovaries. Broader issues of methodology, the constitu