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This week’s HEAL event: Jonathan Montgomery on ‘What is Medical Law “For”?’

In 2013, Key Legal Concepts, Meetings on October 28, 2013 at 7:00 am

Jonathan‘s swansong before he moves to pastures new, namely the Faculty of Laws at UCL, is a HEAL seminar where he will speak on ‘What is Medical Law “For”?’

Abstract  Should Health Care Law seek to resolve issues of bioethics or merely regulate the ways in which they are addressed? Does it matter that conflicting ethical advice can be said to leave patients’ rights unprotected (Miola, J., ‘Medical law and medical ethics – complementary or corrosive?’ (2004) 6 Medical Law International 251-274)? Is Health Care Law doomed to develop into a value-neutral subset of consumer law (Brazier, M. and Glover, N., ‘Does Medical Law have a Future’ in Hayton, D. (ed) Law’s Futures, (Oxford, Hart Publishing, 2000) 371-388)? This paper considers whether it is acceptable for health care lawyers to accept that there may be ‘no right answer’, or whether any theory of Health Care Law that accommodates indeterminacy represents a betrayal of the rule of law. It develops arguments explored in Montgomery, J., ‘The Legitimacy of Medical Law’ In McLean, S. (ed) First do no harm: Law, ethics and healthcare (Aldershot: Ashgate, 2006), 1-16, and Montgomery, J. ‘Law and the demoralisation of medicine’ (2006) 26 Legal Studies 185-210, in order to address some of the challenges identified in those papers. It considers whether an analogy with judicial adjudication might be instructive. 

This event will run from 4-6pm in 2007/4 (Highfield). If you would like to attend please confirm by email to A.M.Viens@soton.ac.uk, thank you.

MMR, Patients’ Beliefs, and Legal Coercion

In 2013, Case of the week, Key Legal Concepts, Vaccination on October 21, 2013 at 7:00 am

Over the last week or so, there’s been a lot of media coverage of a case in which Theis J, sitting in the High Court, issued a declaration that two sisters aged 15 and 11 should receive the MMR vaccination. Although the courts will (rightly) tell us that any such decision concerning the MMR vaccine is applicable only to the particular case under issue, some observers may now sense a trend developing in the jurisprudence on this question.

In the particular case, various stock health care law issues arise: what should practitioners and the courts do in the face of practical disagreement between parents?; how much weight should be given to the views of ‘mature minors’?; can practical problems legitimately interfere with a principled, ‘coercive’, legal decision? (it has been reported that, despite the judgment, the vaccinations have not been given)

A further question, raised in the case, and which causes continuous tension in English health care law concerns the treatment of patients’ (and, for minors, their parents’) beliefs. It is interesting to assess this from a wide range of angles, but here let us focus on two ways that beliefs are expressed in health care decisions.

First, we may find challenges to a patient’s conclusions on a decision, brought by reference to the quality of the reasoning that led to those conclusions. Sometimes, the courts set aside patients’ expressed wishes because of patients’ apparently faulty logic. In the recent MMR case it was noted that whilst the 15 year old child objected to the vaccination on ethical grounds (she is a vegan and says she objects to the products within the vaccine being introduced to her body), she had voiced no such objection to, hypothetically, receiving treatments that also seem to offend her vegan principles, should she fall ill. This apparent inconsistency contributed to the reasons for finding her beliefs less than compelling.

Where judges decide carefully and openly (when is it otherwise?), many will argue that it is proper—especially in the case of child patients—that the courts should not uphold a patient’s ‘rights’ to harm herself, with harm judged even by the patient’s own standards; that we can legitimately, in some circumstances, protect people from their own harmful and inconsistent reasoning.

Yet a second challenge regarding beliefs, which we also find in health care law and which is much harder to resolve, is found in cases where courts essentially disregard a belief by virtue of its very content. Here, we don’t face a flaw in the patient’s process of reasoning. In theory, English health care law aims to be deferential on belief systems; legal principle tells us that generally the basis of our decisions is not for the courts or carers to question. Yet sometimes, ‘the science’, or ‘common sense’, or ‘basic reason’ seem to lead to compelling reasons to disregard a patient’s views.  In these instances, it can be much harder, on terms consistent with legal principle, to frame a judgment that sets aside the patient’s (or parent’s) decision. If such a judgment is to enjoy legitimacy, the law needs to develop coherent means of accommodating such an approach explicitly, for children and for adults.

John Coggon

Experimenting on children?

In 2013, Meetings, Research ethics on October 9, 2013 at 7:51 am

Of course the real title of this blog post is, or should be, something along the lines of ‘today’s HEAL meeting: discussing the NCOB’s consultation on ‘Children and clinical research’: a ‘vulnerable’ group and a lacuna in the law?

On 7 August 2013, the Nuffield Council on Bioethics launched its consultation on the ethical issues arising from involving children in clinical research. As noted by the NCOB, there is a lack of clarity around some questions regarding children’s participation in clinical research. For example, there is no reported case law on whether Gillick competency  applies in a clinical research setting, although the legal position for clinical trials for new medicines IS clearly laid out in the relevant regulations (see further MHRA for links to the different versions of the regs and further context), such that children under 16 cannot – in law – make their own decisions about participating in a clinical trial (consent of a parent with parental responsibility is required).

There are complicating factors, including practical and financial issues – ie what will companies fund, in the short and long term? And, more obviously, questions about ‘best interests’ for the children in question – when children have been and are perceived as  a ‘vulnerable’ group (on vulnerability in health care, see further Biggs and Jones, forthcoming 2014, and 2013).

The call for evidence can be be read at http://www.nuffieldbioethics.org/children-and-research/children-and-research-call-evidence. We’re meeting in rm 2055, Law, Highfield, from 3.15pm today, and looking forward to a great discussion.

Caroline Jones