HEAL UoS

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

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