Archive for March, 2015|Monthly archive page

Test case biographies travelled to Nottingham

In 2014, 2015, Testing project on March 23, 2015 at 8:56 am

The formal end-date for the British Academy/Leverhulme funded project on ‘Test Case Biographies as a Method for Studying Hidden Law-Making’ fell on 15 March 2015. As we turn our attention to writing up the Final Report, and complete at least one publication that has emerged from the project, it is useful to retrospectively write about our paper at the SLS annual conference last year (somewhat belatedly, we admit – and the title of this post adopts that of our write up re the SLSA paper).

On 10 September 2014, Professor Jonathan Montgomery (UCL) and Dr Caroline Jones (Southampton) presented their initial project findings in a paper entitled ‘Test Case Biographies in the (Hidden) Province of Medical Jurisprudence’, in the Medical Law stream at the annual Society of Legal Scholars conference, held at the University of Nottingham.

Abstract: This paper outlines the method(s) developed to create ‘biographies’ of pivotal health care law test cases, in order to explore their provenance and impact, and reflects on the implications of what emerges from this biographical approach for understanding the role of judicial rulings in the development of the law.

Three leading health care law cases, displaying a range of typical variables, will be used to illuminate how social and ethical dilemmas give rise to litigation, rather than other approaches to resolving issues, and the implications for legal theory and policy making. The cases are Quintavalle v HFEA [2005] UKHL 28, wherein a pressure group, CORE, intervened to challenge a regulatory decision, in which it had no personal interest; Burke v GMC [2005] EWCA Civ 1003, where a court ruling was sought regarding the application of non-statutory guidance on the provision of life-sustaining treatment; and R (on the application of AC) v Berkshire West PCT [2011] EWCA Civ 247, on the rationality of a ‘rationing’ decision, and the interplay between procedural and substantive values.

The paper considers how to situate judges within the biography of a case and whether insights from ‘case biographies’ might have a role within judicial decision-making.

And, what we actually spoke on:

As can often be the case, with the benefit of time and reflection between submission of the abstract and the conference, the focus of the paper we delivered was a little different. We did not, for example, consider or situate judges within the biography of a case, except inasmuch as we drew attention to Munby’s consideration of ‘intolerability’ as an example of a distinct style of judging, drawing from our earlier Modern Law Review paper ‘Hidden Law-Making in the Province of Medical Jurisprudence’.

We did, however, outline our findings and reflections – at that time – on the three case studies; tentatively concluding that we have not identified a biographical ‘method’ per se, but note that by asking questions about/around biographical considerations we have spotted different things about these cases. We have illuminated some aspects, albeit we make no claims to ‘truth’ regarding various narrative constructions that emerge from the data, nor seek to explain why things have happened (or indeed why they happened in the way that they did) – these are much more difficult claims. Nevertheless, we realised that there is no single biography of a case (if indeed we ever believed there was), but there are lots of different biographical aspects going on in a given case context, both within the legal stories of legal actors, but also outside of law that intersect and engage with the ‘legal’ aspects. Drawing out some of these strands has been interesting and illuminating, and the task now is for further reflection and critique, not least with existing ideas around democratic, political and philosophical legitimacy.

This week’s HEAL event: Lisa Forsberg speaking on ‘Enhancement and lifestyle interventions, and the lawfulness of medical treatment’

In 2015, Bioethics, Meetings on March 16, 2015 at 12:57 pm

We’re delighted to be welcoming Lisa Forsberg to Southampton on Wednesday 18 March, to present on ‘Enhancement and lifestyle interventions, and the lawfulness of medical treatment’. Lisa’s seminar will run from 3-4pm in room 4055/4. All welcome.

Abstract ‘Enhancement’ procedures, or interventions that are claimed to go beyond the mere restoration of health, have received considerable attention in the ethics literature and in popular fora, but the law’s ability to accommodate such interventions has remained an underexplored topic. Parties to the ‘enhancement’ debate often proceed from the assumption that ‘enhancement’ either ‘should be legalised’, or should not be. However, it is not in fact the case that ‘enhancement’ interventions are not currently regulated. Moreover, intervetions would not, under the current legal regime, be unlawful on the basis that they were ‘enhancement’ interventions, that is, whether an intervention is appropriately designated as an ‘enhancement’ or a ‘treatment’ is not determinative of its lawfulness. Rather, decisions about whether an ‘enhancement’ intervention should be provided are largely delegated to the medical profession, or indeed individual physicians, to be made on an ad hoc basis, in accordance with their ‘professional judgement’. It remains unclear, however, how physicians’ ‘professional judgement’ is expected to help them arrive at answers that track morally relevant considerations. It is argued here, that in the absence of guidance regarding how and on what basis such decisions should be made, physicians’ decisions are unlikely to track morally relevant considerations, and that where this is the case, this may unjustifiably interfere with patient autonomy.

Southampton Event: Taking Pregnancy Seriously in Ethics II (April 13)

In 2015, Bioethics, Meetings, Reproduction on March 16, 2015 at 9:08 am

We’re delighted to spread the word re the forthcoming event on “Taking Pregnancy Seriously in Ethics and Epistemology Workshop II”, to be hosted at Avenue Campus, University of Southampton, on April 13th, 2015.

The speakers are Rebecca Kukla (Georgetown), Sally Fischer (Warren-Wilson), Lindsey Porter (Sheffield), and Fiona Woollard (Southampton).

In applied ethics, much has been written in relation to pregnancy – based either on a conception of pregnancy as the ‘hosting of a stranger’, or focusing on the rights of the foetus whilst disregarding that foetus’s existence as intertwined with that of its mother. Neither of these two approaches takes the unique physical, relation and transformative state of pregnancy seriously. Pregnancy also raises epistemological issues. Does the radically transformative character of pregnancy mean that those who have never been pregnant are excluded from certain kinds of knowledge about pregnancy and its consequences? And are pregnant women taken seriously now as knowers and testifiers? These epistemological issues have important implications for the appropriate way to approach the ethical debate.

This workshop is one of a series of four in the project Taking Pregnancy Seriously in Metaphysics, funded by the Southampton Ethics Centre and the University of Southampton ‘Adventures in Research’ Scheme. It will be followed by two workshops on Taking Pregnancy Seriously in Metaphysics and was preceded by a workshop on Taking Pregnancy Seriously in Ethics and Epistemology on the 18th of June 2014.

For more information, program, abstracts and registration: http://www.southampton.ac.uk/philosophy/news/events/2015/04/13-pregnancy-workshop.page.

Registration is free of charge, and will include tea/coffee/refreshments. Delegates must provide/ pay for their own meals; there is an option to sign up for a buffet lunch (cost: GBP 8.50) when registering via the online store: http://go.soton.ac.uk/6ce

Please register by April 1st. If you would like to attend but childcare duties render your attendance difficult, please contact the organisers (as far in advance as possible).

Elselijn Kingma, Lecturer in Philosophy, University of Southampton

Precarious Paternity?

In 2015, Reproduction on March 13, 2015 at 9:01 am

It has been a busy few weeks in the Family Court, with a number of cases of note re assisted conception, surrogacy, and the implications for legal parenthood thereafter. Two such examples are B v C & D (Surrogacy: Adoption) [2015] EWFC 17, and X v Y & St Bartholomew’s Hospital Centre for Reproductive Medicine [2015] EWFC 13. The Guardian neatly summarised the first case with its headline: ‘Woman acted as surrogate mother for son’s IVF baby, court hears’. And while the facts of the case may be unusual, the arrangement was perfectly lawful within the relevant statutory framework. An adoption order was granted to ensure the biological father (the ‘son’) became the legal father – as without such an order the surrogate mother (his mother) and her husband (his father) would remain the legal parents of the child. Justice Theis commented that: ‘The arrangement the parties entered into is not one, as far as I am aware, that either this court or the clinic has previously encountered and although highly unusual, is entirely lawful under the relevant statutory provisions set out below’ [8]. Indeed, she emphasised how ‘unusual’ this case was at three other junctures (paragraphs [3], [29] and [30]), just for good measure. As one might imagine, a quick trawl on-line reveals that not all reporting/social media coverage has been supportive. What is also clear from this case is the importance of proper legal advice, as without meeting the statutory requirements, (other, i.e., future hypothetical) parties may commit a criminal offence under the adoption legislation.

The second case concerns the importance of consent and ensuring not only that it is provided, but that clinics store the requisite proof of consent before, during and after treatment. In this instance, an unmarried couple in a heterosexual relationship used licensed donor insemination and had a child, Z, in August 2013. As per the statutory framework, both X (father) and Y (mother) were recognised as the legal parents of Z from birth, with no requirement to do anything further (i.e., other than to register Z’s birth in the usual way). One can only imagine their surprise to receive a phone call ‘out of the blue’ from the clinic the following February, to inform them that the ‘necessary consent (sic) may not have been completed’ [9]. Following the earlier decision of AB v CD [2013] EWHC 1418 (Fam) – which gave rise to issues for a co-mother regarding her (non-)legal status in relation to the children in question – the Human Fertilisation and Embryology Authority audited clinics to check whether the statutory requirements were being met in relation to consent in the context of donor conception (and presumably, also, more broadly). Alarmingly, perhaps, the audit of this clinic revealed the following:

‘The CRM audit identified 184 patients that have undertaken fertility treatment using donor sperm during the relevant period. 170 had no legal parenthood issues (of which 102 were unsuccessful following treatments; 1 was a new patient; 11 were unsuccessful but have frozen embryos stored to use in future treatment; 54 were successful and 2 were not able to be contacted) and 14 had parenthood issues. This figure reduced to 13 when it was discovered one of the couples had entered into a civil partnership. 9 treatments had a PP form missing (as in this case) and 2 a WP form missing, 1 was undertaken without the WP form including the correct details of the patient’s partner and in 2 cases the forms had been completed after the treatment had been started. N had dealt with all but 1 of these cases and had dealt with a significant number of the cases where there were no parenthood issues. An analysis of the information from the audit did not reveal any underlying systematic reasons for the anomalous cases. For example, the fact that the forms were missing did not necessarily mean they had not been completed at the relevant time. A copy of the audit was sent to the Authority and the relevant personnel were notified within the Trust. This was classified by the Trust as a serious incident.’
[42] (emphasis added)

On the facts of the case the judge, Justice Theis once again, determined that on the balance of probabilities the consent forms had been signed, and hence the legal requirements regarding reciprocal consent for the recognition of X as the legal father had been met (see s.37 HFE Act 2008), but that the forms had ‘subsequently been mislaid by the clinic’ [15]. This did not, in her view, take the treatment provided outside of the licence requirements (another stipulation of the statutory framework), and so she was free to make the declaration that X was indeed the father of Z. The title for this post came from Theis J’s comments: “a restrictive interpretation of s. 37 in these cases makes paternity ‘precarious’. This is because, in reality, the uncertainty is almost entirely outside the control of X and Y. Although s.37 puts the onus on the prospective parents to give the requisite notice, the law does not expect them to know in advance what the law is or to be aware of this particular duty, but places a prior onus on the clinic to inform and counsel them and to provide them with the appropriate forms. Parents have no effective control over the clinic’s compliance with the conditions of its licence or its retention of the necessary consents.” Whether the other ‘parenthood’ issue cases noted above will also come to the Family Court (or indeed, if they are, be reported) remains to be seen.

As an aside, and linked to the ‘Test Case Biographies’ project, especially our work on case narratives, it is also interesting to note how the latter case arose (according to the judge’s finding) due to the lack of care taken by the clinic/professionals involved, yet resulted in family law actions (and ultimately solutions). At one level this is unsurprising: those involved wish to have their uncertain legal position clarified and resolved, and the Family Court is the place to do so in the circumstances. But, there are nevertheless choices being made about characterising cases as either ‘medical’ or ‘family’, closing down one or more narratives in the construction of the case as being of a particular ilk. Cases may then be reported as important in one legal sphere, but absent from or seemingly of minimal importance in another area.

Caroline Jones

The Making of British Bioethics

In 2015, Bioethics, Publications on March 6, 2015 at 9:00 am

Earlier this week, Jonathan Montgomery and I met with Duncan Wilson to discuss the ‘Test Case Biographies’ project which is nearing completion (more on that in a future post). In his own words, Duncan is a ‘modern historian, whose work investigates changing notions of health, disease and morality during the nineteenth and twentieth centuries’. October 2014 saw the publication of Duncan’s latest book, on ‘The Making of British Bioethics’, by MUP. Some of the thinking behind the book can be found here, and the official description is included below. Leaving aside the excellent content for a moment, the book has a fabulous retro cover, viewable here and here, and a great story behind it (if you meet Duncan ask him). MUP are asking for the sum of £25 for a hardback copy, but there is a less-well advertised free pdf version of the book, here. This is a superb resource for those interested in the modern emergence of British bioethics, and the open access option will make it especially attractive as a teaching tool/companion. (Belated-)Congratulations to Duncan on the conclusion of this particular project, and best of luck with the next one!

Description: The making of British bioethics provides the first in-depth study of how philosophers, lawyers and other ‘outsiders’ came to play a major role in discussing and helping to regulate issues that used to be left to doctors and scientists. It details how British bioethics emerged thanks to a dynamic interplay between sociopolitical concerns and the aims of specific professional groups and individuals who helped create the demand for outside involvement and transformed themselves into influential ‘ethics experts’. Highlighting this interplay helps us appreciate how issues such as embryo research and assisted dying became high-profile ‘bioethical’ concerns in the late twentieth century, and why different groups now play a critical role in developing regulatory standards and leading public debates. The book draws on a wide range of original sources and will be of interest to historians of medicine and science, general historians and bioethicists.