Suzanne Ost

One crucial issue that has historically received little attention within the assisted dying (AD) debate in the UK is what model of state involvement and provision should be implemented if AD becomes lawful. Limited attention has been paid to the question of whether AD should be positioned within existing end-of-life care provision, or whether it should occupy a separate space, with distinct provision. The question of the impact on the National Health Service (NHS) became an important point of concern in debates about the Terminally Ill Adults (End of Life) Bill 2024–2025. These debates raised questions concerning how lawful AD ought to be established, the financial cost of provision for the service which the Bill states must be free, and how best to safeguard the interests of both patients and healthcare professionals. We consider the Government’s impact assessment, possible resource implications and ethical concerns over establishing a lawful AD service in England and Wales. The implications of a model of AD situated either within or alongside existing end-of-life NHS provision or, alternatively, established as a separate service outside existing end-of-life treatment provision are explored. We examine the key issues, including how AD should be funded, drawing on international experiences of different AD models. Our examination reveals that a clear volume/time/cost paradigm emerges, which must be recognised in planning a lawful AD service that avoids encouraging people towards AD. Whatever model of AD is implemented, maximising choice, safety, sustainability and equity of access are key concerns. Given the current NHS funding crisis, a variety of funding options to supplement state funding should be considered.

This article explores the situation in which a victim who has been identified during a criminal justice investigation is unaware of the crime committed against them. We argue that unknowing victims possess a unique vulnerability because discovering their victim status is highly likely to have harmful effects. Where law enforcement officers (LEOs) remain unaware of the victim's knowledge of the crime, this should be perceived as a clue to potential vulnerability. Any subsequent disclosure of the crime to an unknowing victim is an external intervention that exposes them to the risk of harm, thereby raising significant ethical questions. Yet the ethical ramifications of disclosure are not considered in the policing literature and there is no specific professional guidance in England and Wales (and beyond) on this situation. Focusing on two of the primary crime contexts in which a victim can be unknowing (sexual offences and fraud), we scrutinise the ethical issues surrounding LEOs disclosing to an unknowing victim, aligning our analysis with the College of Policing's Code of Ethics and vulnerability-related risks guidelines, and a therapeutic jurisprudence approach to policing.

This article presents the novel conceptualization of the unknowing victim (UV) and addresses the ethical ramifications of this status. Criminology and victimology have primarily focused on knowing victims, but certain crimes occur without the victim’s detection (e.g. sexual assault of an unconscious victim). There is a critical liminal dimension to UV’s status: they are on the threshold between unawareness and conscious awareness of their status as victims of crime and are thus situated on the brink of experiencing harm through their own discovery, or someone else’s disclosure, of the crime committed against them. We call for the recognition of UVs and the temporalities of their embodied experiences, and argue that there is an ethical imperative to prioritize their lived experience.

We are very aware as we write this Editorial that we walk in the footsteps of giants, as we were when we took over as Editors of the Medical Law Review. The previous Editors, titans in the field of medical law, gave us very big shoes to fill, and the challenge was more than a little daunting. Individually, the experiences that led us to Editorship are different, but also similar. Hazel remembers being amazed as a relatively junior academic to receive a formal letter from Professor Margaret Brazier claiming to be impressed by her published work and enquiring if she would be prepared to join the Editorial Board as an active member. At a time when it felt like a struggle to have the value of the discipline recognised by senior departmental colleagues (‘it’s just tort isn’t it?’), this felt like a huge accolade. Subsequently, becoming joint Editor-in-Chief was an enormous honour. Suzanne was delighted and somewhat astounded to be invited by Margot to join her and Kirsty Keywood on the Editorial Team in 2005, as Book Reviews Editor. She had the huge pleasure of working with and learning from them both on this team until 2011. Having witnessed the Editor-in-Chief role being undertaken so effectively during this time, when Margot decided that she would be stepping down, along with Kirsty, and asked Suzanne whether she would like to consider taking on the role of joint Editor-in-Chief with Hazel, Suzanne’s first, stunned reaction was to pinch herself to check that she was not dreaming. As it was not April 1 and Margot seemed perfectly serious, Suzanne’s only conceivable response was that yes, she would be absolutely honoured to do so.

Chapter 7 conveys the common characteristics that exploitation in the doctor-patient relationship possesses and the connection between exploitation and vulnerability. We call for an explicit focus on exploitation in medical ethics education and doctors' continuing professional development, set within a fiduciary ethical framework. Emphasising doctors' fiduciary obligation not to act out of self-interest, we advocate the mandatory disclosure of conflicts of interest in a centrally held, publicly accessible register, and careful enforcement of this duty by the UK's General Medical Council. Through connecting undue influence and fiduciary obligations, we propose a modified legal response to exploitation in the doctor-patient relationship.

Chapter 5 examines sexual exploitation and sexual boundary breaches in the doctor-patient relationship. First, we focus on when doctors' sexual boundary breaches are exploitative, tackling the contentious issue of consent and exploitation through offering inducements, and questioning the appropriateness of the professional zero-tolerance approach to sexual boundary breaches in all cases. Secondly, we identify a gap in the criminal law, proposing a new abuse of trust offence: intentionally causing a relevant sexual act to occur through exploiting another by exercising undue influence. We highlight the potential that fiduciary law offers to address doctors' sexual exploitation of their patients.

Chapter 2 analyses the intricacies of exploitation as a concept. We challenge approaches that focus on the outcome of the interaction between the parties and explain why, notwithstanding our support for alternative approaches which concentrate on the process of the interaction, particular aspects of such accounts leave us unsatisfied. Having identified key commonalities in the existing approaches, we provide an account of exploitation which is orientated towards Kantian liberalism. We identify and scrutinise its primary elements and the way in which it connects with, but also differs from, certain other conceptions of exploitation that highlight the wrongful treatment of others.

Chapter 3 provides a contextual analysis of exploitation in the doctor-patient relationship, which we present as an intimate and confidential professional relationship with trust and a power imbalance at its core. Given that this relationship can be situated in both public and private health care systems in the UK, we explore how the nature of the relationship, and the opportunities for exploitation, might be affected by each system. In considering how the law categorises exploitation in the doctor-patient relationship, we introduce the relevance of undue influence both as a legal doctrine, and as a conduit through which exploitation can be perpetrated.

Chapter 6 applies our account of exploitation to groups commonly perceived to be vulnerable in the context of assisted dying: older adults; the terminally ill; and patients with disabilities. We assess how a patient's perception that they are a burden, and their desire to die, could be exploited. Our focus is not on the doctor as the (primary) exploiter, but the patient's relatives and society. We consider how the law might respond to the risks of exploitation and recognise the relevance of undue influence as a means of facilitating exploitation and as a conceptual legal framework for tackling this exploitation.

Chapter 5 examines sexual exploitation and sexual boundary breaches in the doctor-patient relationship. First, we focus on when doctors' sexual boundary breaches are exploitative, tackling the contentious issue of consent and exploitation through offering inducements, and questioning the appropriateness of the professional zero-tolerance approach to sexual boundary breaches in all cases. Secondly, we identify a gap in the criminal law, proposing a new abuse of trust offence: intentionally causing a relevant sexual act to occur through exploiting another by exercising undue influence. We highlight the potential that fiduciary law offers to address doctors' sexual exploitation of their patients.