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Archive for November, 2013|Monthly archive page

This week’s HEAL event: ‘Sterilisation in his best interests?’ A roundtable discussion of A NHS Trust v DE

In 2013, Best interests, Capacity, Meetings, Reproduction on November 25, 2013 at 8:00 am

This week, HEAL is holding a roundtable discussion with one of our graduates, Jess Connelley, a solicitor specialising in Court of Protection issues, and Dr Andreas Dimopoulos, from Brunel Law School, on Wednesday 27 November 1-2.30pm, in building 4, room 4053.

The case of A NHS Trust v DE [2013] EWHC 2562 (Fam) hit the headlines over the summer; see for example the BBC news coverage.  Andreas was motivated to blog about the case, expressing concern with the reasoning adopted by the High Court judge in reaching her decision. In contrast, Jess blogged positively about the case, heralding it as ‘a success for the Mental Capacity Act and the Court of Protection’. The idea for a roundtable discussion emerged from Twitter exchanges thereafter, including with @juliewintrup, a member of the HEAL network at Southampton.

We hope you will join us for what promises to be an interesting and lively discussion of this case.

Please email Adrian at A.M.Viens@soton.ac.uk if you wish to attend.

 

Caroline Jones

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Criminal Law and Public Health – Working at Cross-Purposes?

In 2013, Gratuitous self-promotion, News, Public Ethics on November 18, 2013 at 8:00 am

According to recent news reports, the city of Edinburgh is getting tough on those who seek sensual pleasures outside of the confines of their own homes.  The police have asked that condoms be banned from saunas as a way of trying to prevent sexual activity on the premises, and city Councillors have been asked to stop issuing licenses for saunas and massage parlours.

Besides being a naïve and impractical way to prevent people from having sex, there has been, unsurprisingly, a strong condemnation of such a move on the grounds of its potential negative effect on public health.  The charity Scot-pep, for instance, has warned that implementing the police proposal on condoms could lead a HIV epidemic, as well as the proposal to limit establishments where sex workers can meet clients puts them at greater risk from some of the inherent hazards of plying their trade outdoors.

There has been a long history in the United Kingdom of a connection between the criminal justice system and public health.  In some cases, it has been a beneficial relationship in which everything from firearms restrictions, requirements for seat belts, motorcycle helmets and child safety seats and restrictions on intoxicating substances, provide examples where the criminal justice system has been used to mitigate or prevent behaviours that are harmful to individual and population health.  Nevertheless, not all intersections of criminal justice and public health are mutually beneficial.  What is most notable is the distinct progression that has been made from a so-called “policing model of public health”, that often focused on ideas of moral hygiene and legal moralism, which remained influential in Britain into the 19th century, towards more social models of public health that focus on health promotion, harm reduction and social justice.

The recent proposals in Edinburgh reveal a conflict that can arise when approaching a social problem through a criminal justice lens rather than one of public health.  Even with a greater focus on individual and population health that shies away from ideas of moral hygiene and legal moralism, there remain important tensions between criminal justice and public health concerns – especially in cases where it concerns sex and sexuality.  What is needed is an approach in which the criminal law – as well as other areas of law – is used as a public health tool that seeks to promote health and well-being, as opposed to being used to punish individuals’ choices we find distasteful or undesirable. 

HEAL has a strong interest in public health ethics and law.  Two of its core members (A.M. Viens and John Coggon) were editors of a volume that was published this month by Cambridge University Press entitled, Criminal Law, Philosophy and Public Health Practice.  Bringing together international experts from a variety of disciplines, including law, criminology, public health, philosophy and health policy, it explores the theoretical and practical implications of how the use of criminal law may promote or hinder public health goals.

A.M. Viens

Discussing Case Narratives: UCL Social Values Workshop

In 2013, Case of the week, News, Testing project on November 11, 2013 at 8:00 am

On 1 November 2013, Professor Jonathan Montgomery (UCL, formerly Southampton) and Dr Caroline Jones presented their initial ideas on a case narrative methodology, in a paper entitled ‘A Tale of Two Citadels: competing narratives in a case biography’, at the UCL Social Values Workshop. This research was supported by the British Academy and Leverhulme Trust small grant scheme, and Alex Chrysanthou (Southampton) provided the research assistance.

 Abstract:  This paper considers how clashes of social values in litigation over NHS funding decisions manifest themselves in the ‘biography’ of a case. It argues that the issues in AC v Berkshire West PCT [2010] EWHC 1162 (Admin) and (on appeal) [2011] EWCA Civ 247 can be seen in terms of two competing narratives; one about discrimination and transgender individuals, the other concerning bureaucratic rationality and prioritisation processes. Each narrative can be conceptualised as a siege on a well defended citadel. The first seeks to break down the barriers excluding transgendered people from full recognition in English law and society. The second tries to wrestle resource allocation from professional and managerial discretion into rights-based scrutiny. 

These competing narratives appear in the selection of legal teams, the overlapping but distinct networks in which cases are connected, and interpretive judgments by lawyers in and out of court. Choice between narratives provides significant framing effects for the assessment of social values, a feature that may be normal rather than unusual in contested legal cases.

[nb. The latest protocol on access to gender identity services from NHS England can be found at: http://www.england.nhs.uk/2013/10/28/gender-protocol/]

Caroline Jones

Burke, Biggs, and Disagreements on Who Knows Best

In 2013, Death and dying on November 4, 2013 at 7:45 am

Burke, Biggs, and Disagreements on Who Knows Best

It is my great pleasure this academic year to be teaching on our third year option in health care law, albeit that the position has only become available by virtue of our losing Jonathan Montgomery to UCL. It is a privilege to teach matters that are central to my research, and the experience is all the more enjoyable as I’ve been lucky enough to do ‘team-teaching’ with my dear colleague, and former HEAL Co-Director, Hazel Biggs.

Part of the point of, and reason for, sharing a platform with Hazel is that we can each bring our own distinct—and perhaps distinctive!—approaches to, and views on, different issues in health care law and ethics. This isn’t simply a point of expanding students’ perspectives by direct exposure to differing views, but also about allowing them to see the nature of debate and disagreement between academics in the field; on some matters, agreeing with Hazel means disagreeing with me, but more fundamentally there’s every chance that disagreeing with both of us is the best way forward!

In a recent lecture, I was reminded of a point on which Hazel and I are particularly at odds, and imagine that our disagreement reflects in microcosm quite pervasive and deeply-held disagreements amongst academic health care lawyers  more generally. Potted histories of bioethics and health care law tend to reflect an eventual (or partial) triumph of concerns for patient autonomy over a dominant, paternalistic (or worse) medical hegemony. Certainly we now find strong defences of autonomy expressed in laws governing consent and mental capacity.

But one divide that remains unbridged, even at the level of principle, is that between negative rights—a patient’s ‘absolute’ right to refuse health care interventions—and positive claims—a patient’s ‘right’, not supported at law, to demand a given intervention regardless of the views of the health care team.  The most noted authority on this point, the Court of Appeal decision in Burke, is clear that ‘autonomy rights’ do not entail a right to demand treatment.

Yet the Court leaves its presentation of principle somewhat cryptic. In negative terms, we are told clearly at paragraph 31 that the duty to treat is not founded on the patient’s demand. But rather less categorically, we are told in positive terms simply that “The source of the duty lies elsewhere.” Part of the explanation for remaining quiet on this question is a strong desire on the Court’s part not to stray into general doctrine, but rather to remain focused on the question under issue (on which it does go on to express reasons). But on what should the general duty to treat be founded? For Hazel, patient autonomy is a sufficiently strong concern that health care practitioners should have no determinative say in treatment decisions; they can advise, yes, but not dictate.

For my part, I would argue that positive claims to health care do rightly include determinative roles both for patients and health care experts. This is in part due to the exceptional nature of health care; it is something special, and something in which we demand expertise, professional judgment, and evidence-based reasoning. It is right, in such circumstances, to insist on a level of deference to clinical judgment and opinion in regard to what can be demanded from the system. My reasoning is in part too based on macro-level concerns; in a system of constrained resources, brakes must be put on what treatments can be given. Amongst good reasons for not providing a health care intervention must be that it will have no or limited efficacy; again, this is a question well judged by someone with expertise. (To be clear, other factors rightly count too, and of course in some instances a small chance of a big gain will be worth taking.)

The ethical debates will rumble on, inside and outside the classroom – but I doubt that the courts will be persuaded to provide an exclusive, general competence to patients in positive decisions.

John Coggon