Abstract
It is the editors’ pleasure to present this June 2026 issue of Medical Law International to our readership. The issue ranges across a diversity of topics in health law in and across jurisdictions. It includes articles on the scope of medical liability under conditions of resource scarcity, children’s capacity to consent to medical treatment, and the governance of AI in healthcare, as well as reviews of books on migrant and refugee access to healthcare and adult social care law and policy. We express gratitude to our authors for these important contributions to scholarship.
In ‘Medical liability under limited resources: a law and economics perspective’, Michael Faure and Louis T. Visscher adopt an economic analysis of law to engage with the question, ‘should the limited availability of resources affect the required level of medical care or, more generally, a finding of medical liability?’, with a focus on hospital liability in tort law. The advantage of this methodology, Faure and Visscher argue, is that it enables analysis of the medical liability regime against its ends, specifically, they argue, the goal of prevention. Faure and Visscher consider the capacity of tort law to provide deterrent incentives to potential tortfeasors and to spread loss for iatrogenic injury that has materialised. The authors argue that the scarcity of resources in healthcare exerts an influence on the weighing of costs and benefits of precautionary measures. Limited resources may force healthcare providers to choose between treating more people with less care or fewer people with more care. The fact of resource scarcity, Faure and Visscher contend, provides a preference for a negligence rule over strict liability. This is because:
[u]nder strict liability, the hospitals would still have to bear [liability for residual losses that were too costly to avoid], which implies that part of the (already limited) budget will be spent on this expected liability or on liability insurance.
To address informational and procedural challenges for claimants that attach to negligence regimes, the authors advocate for a reversed burden of proof, that is, placing the burden of showing the standard of care was met on the hospital, rather than on patient. On this approach, ‘the hospital can only escape liability if it shows that it has taken all the measures prescribed by the regulation’. Finally, Faure and Visscher speak to the importance of regulation and medical guidelines as behavioural incentives for the avoidance of medical accidents.
In ‘Clarifying “maturity”: Determining children’s capacity for medical consent in South Africa’, Larisse Prinsen and Marozane Spamers examine how South African law treats the evolving capacity of minors to consent to medical treatment. Under the Children’s Act 2005, minors aged 12 years and older are presumed to have the capacity to consent to medical treatment provided they are of sufficient maturity to understand its nature and consequences. Prinsen and Spamers observe that while the Act makes repeat reference to the concept of ‘maturity’, it does not provide a conception of maturity that would facilitate application of the law, and to wit, the determination of children’s capacity. The authors first engage in clarificatory analysis of the notions of ‘competence’, ‘capacity’, ‘maturity’, ‘sufficient maturity’, and related terminology. Prinsen and Spamers argue that for the purposes of the Children Act 2005,
The legal construct of sufficient maturity. . . 2005, blends elements of maturity [a general state encompassing the intellectual, emotional, cognitive and social stage of a person’s development] and capacity [the mental ability to understand, deliberate and make decisions] to create a threshold tailored for specific legal decisions – consent to medical treatment.
The authors go on to consider the role of brain development in the determination of sufficient maturity, proposing guidelines for its respective presence or absence in the case of consent to medical treatment.
In ‘AI in healthcare: regulatory guidelines and judge-made negligence principles for AI implementers’, Gary Chan offers a cross-jurisdictional, as well as detailed Singaporean treatment, of the use of AI in healthcare. Chan’s goal is to elucidate how ordinary principles of negligence law might respond to application of AI in healthcare given the probability that – just as in the case of human-only healthcare provision – AI-involved healthcare will sometimes coincide with patient injury. Chan considers the important interaction of the standard of care attendant on hospitals and doctors with regulatory guidelines on AI use – in particular, Singapore’s Artificial Intelligence in Healthcare Guidelines (2021). Chan argues that while regulatory guidelines are not a formal source of law, they may provide valuable interpretive aids to courts tasked with determining the standard of care:
[R]egulatory guidelines have raised important issues relating to the reasonableness of relying on medical AI and the validation procedures, the acceptance and rejection of AI recommendations, the extent of transparency regarding AI usage and disclosures of material information regarding AI risks, benefits and complications to patients, and the explainability of AI outputs.
Of course, negligence liability also requires proof of causation of the patient’s injury. Here, Chan notes that legal causation ought not to present a particular barrier to recovery when AI is used in healthcare settings. However, complex matters of factual causation may well arise: ‘whether there is liability in negligence would depend on establishing the causation of damage attributable to the alleged negligence of AI developers and/or implementers’, for which one response may be apportionment of responsibility between parties who develop and parties who use AI healthcare tools. Chan concludes with a call for collaboration between industry and the health professions, a collaboration which would serve the ends of minimising the risks of AI errors in this domain.
Onto our book reviews for this issue, Yana Litins’ka reviews Luca Follis, Karolina Follis, and Nicola Burns (eds), Migrant and Refugee Access to Health Systems: Challenging (Im)mobilities in Healthcare (Edward Elgar Publishing, 2025). The volume consists in a ‘multidisciplinary exploration of how mobility itself influences access to healthcare’ across lower-, middle-, and high-income jurisdictions. As Litins’ka notes, the common core of the volume is the notion of ‘sedentary bias’ – ‘the assumption of national healthcare systems that patients have a fixed address and permanent legal status (often citizenship), and that these will not change’. This focus provides ‘an original analytical lens that reveals how healthcare systems are structurally designed to serve settled populations [such that] mobility itself becomes a barrier to care, even when legal entitlements exist’. Litins’ka also praises the volume’s attention to ‘infrastructural violence’, revealing ‘how bureaucratic procedures, data infrastructures, and moral economies produce exclusion even in systems that formally guarantee access’. In so doing, it offers a challenge to medical law scholarship that is neglectful of the formal-practical gap, as well as a ‘call to action’ for all concerned – which the editors respectfully submit is everyone – with migrants’ access to healthcare.
Clayton Ó Néill reviews Jean V. McHale and Laura Noszlopy, Adult Social Care Law and Policy: Lessons from the Pandemic (Bristol University Press, 2025). While the book’s focus is the impact of the COVID-19 pandemic on adult social care in England, Ó Néill begins by reminding us of the broader scholarly and social value of McHale and Noszlopy’s study:
Adult social care is often given little prominence in literature and in historical treatment. Yet, this is a strange anomaly, because adult social care is something that applies to so many families, so many contexts, so many people who are marginalised or disenfranchised. Adult social care is something that lies at the heart of much of what happens in society, but it is a hidden reality in many cases.
McHale and Nozslopy’s book combines empirical study of the legal and practical realities of adult social care provision under conditions of the COVID-19 pandemic – taking the West Midlands as a case study – with socio-legal analyses of vulnerability and autonomy. For Ó Néill, the regional case study ‘allows the authors to highlight the clash between national policy and statute and discretion in application at local level’ and to offer substantive recommendations for improving adult social care law policy and practice. McHale and Nozlopy elicit praise from O Néill for their contribution, which ‘bridges the gap between the law/rules and practical realities’—an achievement both books reviewed in this issue share.
