HEAL UoS

What is ‘proper medical treatment’?

In 2013, Conferences, Key Legal Concepts on September 18, 2013 at 7:52 am

It makes a big difference to the legal, social, and to many minds moral acceptability of interventions to know that they are—or are not—‘proper medical treatment’. In English medical law, even for people who aren’t found to lack decision-making capacity, consent alone is insufficient to make an intervention lawful; it has, according to some external standard, to constitute treatment that serves a person’s interests. But where does medicine find its legitimacy? What about a medical act attracts legal protection when a qualitatively identical act undertaken by a non-medic would not be deemed to serve someone’s interests, and be criminal? How far can ‘medicalisation’ legitimise what would otherwise be beyond the pale; assisted dying, cosmetic procedures, and so on?

In an impressive, wide-ranging series of discussions at a conference I attended last week, some of the key questions were raised and explored about how we understand ‘proper medical treatment’, and challenges were made to the reverence that we might offer it. The meeting, organised by Sara Fovarague and Alex Mullock, was built on the theme “Transforming wrong(s) into right(s): The power of ‘proper medical treatment’”. The legitimacy—or as Margot Brazier suggested on Thursday perhaps the magic—of medicine, forestalling prosecutions for what would on their face be criminal acts, is found in the legal concept of the ‘medical exception’. But to be proper, it is insufficient simply that treatment is given by a doctor, or even that its provision is recognised and endorsed in the professional opinion of a number of doctors. Coming to a clear understanding of ‘proper’ is as hard as coming to a clear understanding of ‘medical’. Yet these terms have crucial importance in practice.

I was lucky enough to be a discussant on a panel with speakers Julian Sheather and Cam Donaldson, who respectively interrogated the theme from political and economic perspectives. Julian demonstrated how political ends can be achieved through medicalisation, even in the face of serious objections from the profession itself, whilst Cam provoked interesting questions about how a health economist might assess the idea of ‘proper’ in proper medical treatment. Cam also made clear how important it is to include a health economics perspective in these ethical and legal debates.

Reflecting on the ideas from a legal perspective, I would question—regardless of whether we are convinced by the moral weight of designating something ‘proper medical treatment’—how much conceptual grip we can get on the idea of medical treatment by looking at what judges, practitioners, and policy-makers have to say. If the NHS is to afford what amounts to a right to healthcare, and if we are to recognise the importance of healthcare practitioners’ expertise, it seems inevitable—and right—that we should conceive of robust central cases of medical treatment. But at the fringes, there will be fuzzy, contestable claims about whether something should be seen as proper treatment or not. In those instances, we may look to decided cases and existing regulations, but the bases of their rationales will be wide and varied: for example, tax law cases based on European Union law; individual claims for intervention based on the European Convention on Human Rights.

A strong degree of coherence is needed if we are to enjoy a healthcare system whose legal and ethical rationale is not arbitrary. Yet too constraining a rationale will stifle innovation, and damage protections of plural values that healthcare law protects. A project aimed at understanding ‘proper medical treatment’ is an important one. At its end, I wonder if an exhaustive definition will necessarily be the best one.

John Coggon, Southampton Law School.

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