Editorial

For the September 2025 issue of Medical Law International, the editorial team are delighted to share the following contributions with our readers. As ever, we are grateful to our contributors for their work.

In their article, ‘Should conditional deceased organ donation be permitted? Identifying legal and ethical considerations’, Farrah Raza et al address the long-standing assumption, held by many and enshrined in law and policy in England and Wales, that the donation of organs should generally be unconditional. That is, that organ donors should not be able to attach any conditions (or stipulations) to their donation. After establishing that there may, however, be cases in which conditions attached to the donation of an organ are ethically permissible (or at least tolerable), the authors evaluate three potential models for permitting conditional donation: (a) permitting some conditions (they also then consider whether this should be permitting conditions except those contrary to equality and non-discrimination law); (b) permitting conditions as exceptions to the general rule; and (c) permitting conditions, but recognising them only as advisory. Determining that the autonomy of those donating and the pragmatic benefits which would ensue support permitting conditional donation, the authors conclude that there is a need for reform. Raza et al stop short of reaching a conclusion that one model is preferable to the others – rather they conclude that in England and Wales we ought to convene a working group with a diverse membership, encompassing clinical, legal and lay perspectives, to interrogate these models further.

Also on organ donation is the article ‘Mental Capacity and “Opt Out” for Organ Donation: Principled Presumptions?’ by Parsons and Hayes, which considers the exemptions in the legal framework in Wales and in England preventing opt out applying to individuals who lack decision-making capacity. Parsons and Hayes argue that the exemption is important because opt-out systems are reliant on the notion that deeming consent in law is legitimate because a person has chosen not to opt out of organ donation. Like all health decisions, having capacity is a prerequisite for us to recognise the choice not to opt out. Therefore, the exemption is an appropriate and important safeguard for individuals and the scheme itself. However, the authors argue that the construction of the exemption for individuals lacking capacity is a departure from the long-standing understanding of capacity in the Mental Capacity Act 2005. The opt-out exemption introduces a status-based approach to capacity based on diagnosis alone, which the Mental Capacity Act 2005 explicitly rejects in its two-part (diagnostic and functional) test for incapacity. Parsons and Hayes argue that the incompatibility between the two statutes is problematic because of the confusion it introduces for health professionals. They suggest the matter can be easily remedied – with clarification for the divergence in clear guidance, or amendment.

In the next article, ‘Revisiting Consent, Gillick Competency, Parens Patriae and the Access of Minors to Mental Health Services in Singapore’, Chan explores the legal challenges surrounding the delivery of mental health care to children under the age of legal majority in Singapore, particularly the barrier of parental consent. As Chan explains, this investigation is critical given the mental health crisis affecting young people in the wake of the Covid-19 pandemic. First, the article evaluates the age of majority for the purposes of giving consent to healthcare in Singapore (a matter that is by no means clear) and argues that the age of 18 should be considered the presumptive age of capacity to consent. Second, the article argues that Gillick competence, ¹ as developed in English law as a mechanism to permit minors to consent to healthcare where they meet the standard of decision-making capacity and cannot be persuaded to involve their parents, has already to some extent been embraced in Singapore. However, Chan continues that there must be more clarity about the extent of Gillick’s relevance to support the provision of mental health support to minors. Chan finally offers several reform suggestions including clear statutory age-based thresholds for consent in mental health.

The first commentary in this issue is ‘The Health and Social Care Committee Report on assisted suicide/assisted dying: another opportunity for the legislature (and even the judiciary) to deliberate on end-of-life in England and Wales’ by Papadopoulou. The report published in 2024, Papadopoulou argues, was critical background to the Terminally Ill (End of Life) Bill 2024–2025, specifically in its ability to ensure informed engagement. In her commentary, Papadopoulou focuses on the report’s consideration of the role of healthcare professionals in assisted dying, noting that it might have better engaged with the recommendations of healthcare organisations. Papadopoulou also comments on the absence of reflection on the physical condition of the individual seeking assisted death in the report, which she highlights was an oversight given the importance of physical condition as an eligibility criterion to access. Her commentary concludes that the report is important evidence for Parliament, enabling it to engage with the debate and progress the Bill. Looking forward, however, should the Bill fail in the House of Lords, Papadopoulou contends that the report may still serve a purpose in the courtroom, providing useful, previously unavailable, ² ‘evidence’ to conduct a human rights compatibility assessment of the criminal prohibitions of assisted dying.

A second commentary by Leani, ³ ‘COVID-19, Scarce Health Resources Allocation and Standard View of Disability: On the Colombian Constitutional Court’s Judgment T-237 of 2023’ explores a challenge on the part of a group of chronically ill citizens against the Columbian Ministry of Health and Social Protection requesting they release clear guidelines to prevent unethical triage practices during the COVID-19 pandemic. The applicants’ concern was that each department, municipality, clinic and hospital was not bound to any central guidance on how to triage where necessary and therefore direct and indirect discriminatory practices, most notably disadvantaging individuals based on age and disability, could run rife. Leani argues that the judgement, recognising the real risks of an absence of binding State recommendations and thus holding the Ministry must intervene, provides an important ‘precedent for ethical triage and ethical preparedness for emergencies in Latin America’. Leani reflects throughout on the need to reflect on how understandings and notions of disability are constructed and how epistemic bias pervades training, guidelines, and practice in healthcare that can, left unchecked, allow the discriminatory operation of triage guidelines.

Finally, the issue contains two book reviews. First, Nosratzadeh reviews Sheldon, Davis, O’Neill and Parker’s book, The Abortion Act 1967: A Biography of a UK Law (Cambridge University Press, 2022), praising it as ‘ground-breaking’ and ‘thought-provoking’. The book, through empirical work and historical research, offers a biography of the Abortion Act 1967 from its inception, through battles to further restrict or liberalise its provisions, and to Northern Ireland where it has never applied. Nosratzadeh notes that as the need for reform is clear, a reader might be left wondering what this could look like, and so there is much thought to be about the future of (or indeed beyond) the Abortion Act 1967.

Second, Sirotkin reviews Loughlin’s Law and Personality Disorder: Human Rights, Human Risks, and Rehabilitation (Oxford University Press, 2024), recommending it as an ‘essential read’ for scholars interested in the ethics of detention and institutional violence. The book explores the preventive detention of individuals with dangerous and severe personality disorders in England and Wales, using empirical research to critique the practice and the legal framework that enables it. Sirotkin argues that the book is an important case study for scholars in medical law and ethics, in how historical social concerns and its interaction with psychiatry, shape contemporary law in context, in addition to the important human rights arguments it makes about the ethics of detention. The book also makes reform suggestions, whose full ramifications Sirotkin suggests are in need of further evaluation.