Archive for the ‘2012’ Category

Court declines to make new law in Nicklinson test case

In 2012, Death and dying, Key Legal Concepts, Testing project on August 21, 2012 at 4:30 pm

Judgment was given in the latest phase of the Nicklinson litigation on 16 August 2012. The court rejected the suggestions either  (a) that there was a common law defence of necessity that protected those who carried out voluntary euthanasia and or (b) that further clarifications were required of the prosecution policy set out by the Director of Public Prosecutions in 2010. Two cases were heard together, and as they raised significant constitutional issues the Attorney General was joined as a party at the request of the court.

The court acknowledged that these were ‘tragic cases’. Tony Nicklinson had suffered a catastrophic stroke in June 2005 that left him paralysed below the neck, unable to speak or move anything but his head and eyes. He communicated by blinking to indicate a letter on a Perspex board or through an eye blink computer. He said

‘My life can be summed up as dull, miserable, demeaning, undignified and intolerable. …it is misery created by the accumulation of lots of things which are minor in themselves but, taken together, ruin what’s left of my life. Things like…constant dribbling; having to be hoisted everywhere; loss of independence, …particularly toileting and washing, in fact all bodily functions (by far the hardest thing to get used to); having to forgo favourite foods; … having to wait until 10.30 to go to the toilet…in extreme circumstances I have gone in the chair, and have sat there until the carers arrived at the normal time.”

He had wanted his life to end since 2007, although not necessarily immediately. The court understood that he would probably wish to end it in a year or two, but he wanted to establish through the litigation the right to die with dignity at a time of his choosing.  His only options to achieve this were self-starvation or voluntary euthanasia. Assisted euthanasia, such as provided by Dignitas in Switzerland, would not have helped because he did not have the physical ability to carry out the final act himself.

Tony’s case was heard with a separate application from a man referred to by the pseudonym of ‘Martin’. He would be capable of physically assisted suicide, but this would have involved someone else committing an offence under the Suicide Act 1961, section 2. Martin’s wife, a nurse and devoted to his care, was not willing to support Martin for that purpose, with which she did not agree. Martin’s main claim was against the DPP, requesting clarification of the prosecution policy. However, the Solicitors Regulation Authority (SRA) and the General Medical Council (GMC) were also included in the proceedings.

Nicklinson argued for a defence of necessity in the following circumstances:

(a) the Court has confirmed in advance that the defence of necessity will arise on the facts of the particular case; (b) the Court is satisfied that the person is suffering from a medical condition that causes unbearable suffering; that there are no alternative means available by which his suffering may be relieved; and that he has made a voluntary, clear, settled and informed decision to end his life; and (c) the assistance is to be given by a medical doctor who is satisfied that his or her duty to respect autonomy and to ease the patient’s suffering outweighs his or her duty to preserve life;

He contended that his rights under Article 8 of the European Convention on Human Rights required the law to recognise such a defence.

However, the court found that it would be wrong to do so, as it ‘would be to go far beyond anything which the Strasbourg court has said, would be inconsistent with the judgments of the House of Lords and the Strasbourg court in Pretty, and would be to usurp the proper role of Parliament.’ In particular, three reasons were offered why the court should not take this step. These provide an important articulation of the constitutional restraints in relation to judicial law-making, which are significant for our wider project on test cases and hidden lawmakers.

The first was an issue of competence that derived from the difficulties involved in resolving broad conflicts of principles on which our society is divided through the resolution of specific cases. While it might be reasonable for a court to develop the implications of widely held principles, this did not make it competent to play the same role where those principles were controversial. The court’s analysis of the relevant human rights jurisprudence had led it to conclude that the issue of euthanasia was a matter within the margin of appreciation afforded to national legal systems to adopt their own conclusions. Consequently, the development that Nicklinson proposed was not justified as merely an interpretation of the common law to make it consistent with the requirements of the European Convention.

The second problem that the court saw with such judicial activism concerned its constitutionality as it would bring them into conflict with the sovereignty of parliament. The court thought it was being asked  ‘to introduce a major change in an area where there are strongly held conflicting views, where Parliament has rejected attempts to introduce such a change’ (it noted such attempts in 2003, 2004, 2005, 2006, 2009 and 2012). This is a similar argument to that I made in the article, ‘Guarding the gates of St Peter: life, death and law making’ (2011) Legal Studies 31, (4), 644-666, about the decision of the House of Lords in R (Purdy) v DPP  [2009] UKHL 45. In Nicklinson, the court identified a number of cases where expressions of judicial restraint in deference to Parliamentary sovereignty can be found and felt that it should remain within that tradition.

Finally, the court expressed concern about the ability of case law to exercise the necessary control of the consequences that would be needed to develop the law in such a complex area. It suggested that safeguards would need to be designed that could only be properly done by Parliament. This could be said to be implicitly recognised by the terms of the declaration sought by Nicklinson, with its references to prior review by the courts and professional involvement in carrying out the ‘mercy killing’. If necessity really prevailed, then surely the circumstances would justify the killing whether or not the court had looked at it in advance.

Thus, the decision can be said to take a more orthodox approach to role of the courts than that adopted in Purdy. Rejecting the suggestion that further clarification was required of the DPP’s policy, the court suggested that to do so would be to require the DPP to impinge on Parliamentary sovereignty. It also noted that this would be too rigid an interpretation of the need for certainty implied by ‘in accordance with the law’ in Article 8(2) of the European Convention on Human Rights (again see my article for a similar argument), stating that

‘it would go beyond the Convention jurisprudence about the meaning of “law” in the context of the rule of law. Even when considering the meaning of “law” in the strict sense of that which may be enforced by the courts, the jurisprudence allows a degree of flexibility in the way that it is formulated (Sunday Times v UK). This must apply even more in relation to “law” in the extended sense of meaning the law as it is liable in practice to be enforced (Purdy paragraph 112), because flexibility is inherent in a discretion. It is enough that the citizen should know the consequences which may well result from a particular course of action.’ (para 141).

Finally, the court suggested that the argument being put forward was for so much detail in the policy as to be impractical. Again, as on the constitutional points, these positions seem to be a more orthodox account of the problems than set out in Purdy. An appeal is anticipated and it will be interesting to see how the constitutional issues play out in the higher courts.

Jonathan Montgomery

‘Don’t Blame Me’ – The role and scope of the principle of ‘Double Effect’

In 2012, Death and dying, Key Legal Concepts on July 30, 2012 at 9:00 am

On Friday 13th July, Jonathan Montgomery addressed the 6th international conference on paediatric palliative care in Cardiff at its meeting on Science, meaning and morality: the palliative package?  He was asked to explain the doctrine of ”double effect’. He argued that its general function is to explain why sometimes we may not attribute blame for actions that would normally be wrong but seem acceptable in the specific context. However, it is used both as a technical doctrine and more loosely to capture the idea that sometimes we have to make a ‘tragic choice’ – one that we would prefer not to have to make.

The work that we expect from the principle of ‘double effect’ depends on the general approach that we adopt to ethical judgments and responsibility. For some approaches to ethics, such as Utilitarianism, it may not be necessary to appeal to the idea of ‘double effect’ at all. If the rightness of an action depends on balancing the beneficial and negative effects of one’s actions, then this calculation will explain why it is thought acceptable to do something that may normally be wrong because, overall, the good outweighs the bad in the consequential calculus. However, for those whose approach to ethics is driven by the view that some actions are impermissible because they are intrinsically wrong, then problems are presented by cases in which decisions seem to involve choosing between two intrinsically wrong actions. It is this view that has led to the more precisely defined Doctrine of Double Effect’ , associated with Roman Catholic ethical traditions derived from the work of St Thomas Aquinas. Others who adopt the famous ‘Four Principles’ of autonomy, beneficence, non-maleficence and justice may consider the idea of double effect in the context of determining whether actions have breached the principle of non-maleficence and it is in this context that it is discussed in Beauchamp and Childress’s leading work.

For justifications under the formal ‘doctrine’ of double effect, four conditions are usually required to be met. (1) The act being performed must be ascertained to be ‘good’, or at least neutral, without reliance on the anticipated consequences. (2) You intend only the good effect (using a concept nearer that of ‘motive’ than reasonably foreseeable consequences as the law  usually defines ‘intention’).  (3) The bad effect must not be the means to the good (this may be little more than spelling out a point that some would argue is implicit in (2) if you accept that we must be taken to have intended the means by which we set out to achieve things). (4) The good effect must outweigh the bad one (sometimes explained in terms of ‘proportionality’ or ‘sufficient reason’).
The law in England and Wales does not use this doctrine in any formal sense, but it has used a number of techniques to address the problem. One of these, derived from the decision in R v Adams (1957) is often described as an application of ‘double effect’, although this is not necessarily a helpful short-hand for a ruling that was justified on an overlapping but independent set of grounds (which in turn are slightly muddled and frustratingly implicit). That case suggests that health professionals can give care that may also incidentally shorten life provided that (a) the patient is close to death, (b) it constitutes ‘right and proper care’ and (c) the purpose is to relieve pain rather than to shorten life. These conditions are not easy to defend in the face of established legal principles. The third seems to conflict with the expectation in the criminal law that people must be taken to intend the reasonably foreseeable consequences of their actions so that ‘motive’ is not normally relevant to the definition of a crime, but may be appropriate to questions of sentencing rather than guilt. The second implies that health professionals can place themselves above the law by defining their own criminal liabilities. The first seems to suggest that the fact that someone is already about to die means that they can be murdered with impunity.
This is not the only case in which the law has grappled with the issues to which ‘double effect’ thinking  has been applied. In R v Arthur (1981) a paediatrician had used a drug in the care of a disabled neonate that was said to suppress its appetite. He was prosecuted and the judge invited the jury to consider whether his actions were best described as (a)  ‘a holding operation, in the nature of setting conditions where the child could . . . if it contracted pneumonia . . . or if it revealed any other organic defect die peacefully’ or (b) ‘a positive act…which was likely to kill the child . . . accompanied by an intent on his part that it should as a result of the treatment that he prescribed die’. The former was said to be lawful, but the latter was a crime.  The jury acquitted Dr Arthur.
This approach draws less on the idea of ‘double effect’ than on the distinction between acts and omissions. It implies that allowing someone to die, even if those conditions have been ‘set’ intentionally is categorically different from killing them. However, pushing someone in front of a train may be only ‘setting conditions’ in which they might be run down, but it would still be murder. In any event omitting to save someone’s life when you have a duty to save them can be murder. The question is more about the scope of the duty to act than the supposed qualitative difference between acts and omission. The application of this to health care was discussed in Airedale NHS Trust v Bland (1983).
A further example from the case law concerned the conjoined twins known in the litigation as ‘Jodie’ and ‘Mary’ (reported as Re A). As is often the case in difficult legal decisions, the different judges explored different rationales without clearly indicating which was to be preferred. One strand – the family law analysis – focused on the legal duty to act in the best interests of children whose welfare falls to be overseen by the courts. It was reasonably clear that saving Jodie by surgical separation of the twins was in her best interests as it would be likely to mean her survival. However, to describe the operation as being in Mary’s best interests when she would be not be able to survive was counter-intuitive (although one judge thought it was in her interests to be permitted to die with dignity). On the family law analysis, it is probably best to characterise the decision as the least detrimental alternative, saving at least one life rather than losing both.
There was also discussion of the possibility that the operation could be justified as ‘self-defence’ by Jodie because Mary’s reliance on her was threatening her life. However, it is unclear that this could really apply to the actions of the surgeon. Perhaps the stronger legal analysis lies in the application of the defence of ‘necessity’, where there was (a) a need to act to avoid irreparable harm, (b) the defendant did no more than was necessary to avoid it, and (c) the evil inflicted was not disproportionate to the evil avoided. This doctrine of necessity is wider that the doctrine of double effect, but it has a more robust pedigree in English and Welsh law.

World first: Podiatrists & Physiotherapists ‘set to gain prescribing powers’

In 2012, News on July 24, 2012 at 11:31 am

Today, Ministers have announced their approval to lay amendments to medicines legislation before parliament that will allow independent prescribing responsibilities to be extended to appropriately qualified physiotherapists and podiatrists. According to the DH press release (available on-line), this is a novel breakthrough: “Once suitably trained, physiotherapists and podiatrists in the UK would be the first in the world to be able to independently prescribe medicines where clinically appropriate.”

HEAL responded to both public consultations in 2011, and we are delighted to see we have been cited in both summary reports of the responses (physio & podiatrist). First,  in the Podiatrists Report [page 15], in the summary of responses to Q 1 on the ‘preferred option[s] for introducing independent prescribing (IP) by podiatrists’:  Option 1  was ‘independent prescribing for any condition from a full formulary’]

“Option 1 provides good opportunities to ensure and enhance responsiveness to patient need, widen patient choice, and enhance accessibility to medicines in terms of location as well as provider. It will also further support role flexibility and workforce redesign, ensuring better use of GP time and more collaborative inter-professional working. In addition, there is evidence to suggest that independent prescribing by nurses and pharmacists is operating safely and patients are satisfied (Latter et al, 2010; http://eprints.soton.ac.uk/184777/).”  Health, Ethics and Law network, University of Southampton 

Second, in the Physiotherapists Report [p36] in the section on ‘comments relating to practice guidance’:

“The Health Ethics and Law network acknowledges that the professional guidance documents for both podiatry and physiotherapy offer clear guidance to both NHS and private practice practitioners, and offers a relevant governance structure for prescribing. It is comparable in the structure and content to other NMP professional and regulatory body guidance documents (such as that provided by the Nursing and Midwifery Council, and the College of Optometrists) for professions currently with Independent Prescriber members/registrants.”
Health, Ethics and Law network, University of Southampton

According to the press release “physiotherapists and podiatrists who have successfully completed Health Professions Council (HPC) approved education programmes and are annotated on theHPCregister could be prescribing independently in 2014.”

Today’s HEAL meeting: ‘Regulating Bioethics in the UK’

In 2012, Meetings on July 20, 2012 at 11:36 am

This lunchtime Jonathan Montgomery will be talking on ‘Regulating Bioethics in the UK’ (from 1pm in room 2007/4, Highfield), drawing on his earlier public lecture at Portsmouth Cathedral on ‘Whose ethics are bioethics?’  in the series ‘Society and Our Values’. To whet your appetites for today’s discussion, the essence of his earlier talk is summarised thus:  

“This lecture examines the implications of the plurality of ethics for the processes that we can use, in the UK, in 2012, to set public policy on bioethics. In particular, I am concerned with the opportunities and challenges that arise as that regulatory landscape is changing significantly. In this sense, the question is ‘Which ethics is bioethics?’ and asks us to choose the methodology for making such decisions. The current Government has adopted a very different approach to doing public bioethics from the one that had become established over the previous thirty years. Over that period, public bioethics in the UK has largely been done by committee – the Human Fertilisation and Embryology Authority or the Human Genetics Commission being leading examples. When it took power, the Government boldly announced the demise of these organisations in its bonfire of the quangos (although the actual death is long and agonising), but has not really explained how public bioethics will be done in its absence. My aim in this paper is to consider some of the options and how the churches might respond to the opportunities that they present.”


What is a presumption worth?

In 2012, Capacity, Key Legal Concepts on July 9, 2012 at 9:00 am

Presumptions are a promising legal tool. They work in two ways. First to establish a default position – in the absence of specific evidence what should we presume the right position to be? Second to ensure that we only move way from that default position when we are satisfied that the evidence on which we are doing so is clear enough to justify displacing the presumption in question. These two separate but connected questions can be described in terms of the onus, or burden, of proof and of the standard of proof. Thus, the presumption of innocence in criminal law means first that the onus lies on the prosecution to prove that the accused has perpetrated a crime, and second to do so beyond all reasonable doubt (the criminal standard of proof, rather than against the civil standard – the balance of probabilities). The higher the standard of proof, the more weighty the presumption can be said to be.

Such presumptions can be used in health care law to point professionals  in the direction of what is thought to be the most likely desirable practice and, when appropriately weighted, may be used to ensure that they will only depart from that practice when they have a solid basis for doing so. In practice, however, courts may not apply presumptions in the way that is anticipated. A presumption with no weight at all (so that no real evidence is required to rebut it) is barely worth its place in the law.

These issues have been neatly illustrated in recent cases concerning decisions by adults that they wish to be allowed to die. The Mental Capacity Act 2005 section 1 established a presumption of competence to which the courts seem to have given little weight. Further, they seem to have created a strong presumption that life is to be preserved despite the absence of any weighting in the best interest checklist in s 4 of that Act.

In Re E (Medical treatment: Anorexia) (Rev 1) [2012] EWHC 1639 (COP) (15 June 2012) Peter Jackson J found that a 32-year-old woman who suffered from severe anorexia nervosa, who was refusing to eat and would accept only a small quantity of water, lacked capacity to make a decision about life-sustaining treatment. Although the judge recognised that there was a presumption that E had competence, he found that it was displaced by her ‘obsessive fear of weight gain’ (which made her ‘incapable of weighing the advantages and disadvantages of eating in any meaningful way’). He said that this ‘compulsion’ had become ‘the card that trumps all others’ and ‘overpowers all other thoughts’.  His evidence to support this was that when a conversation turned to the question of weight gain she began to cry, having previously been ‘smiling and laughing’ [Para 49]. In addition as a secondary reason for the conclusion of  lack of competence, she was in a ‘drug haze’ due to strong sedative medication [para 50]. The court reached this conclusion despite the views of the Official Solicitor’s representative, and of the two doctors who knew the patient best, that her views should be respected [para 51].

E had also made two advance declarations that she did not want to be resuscitated or to be given any medical intervention to prolong her life. Here, the Court of Protection had the power to rule on whether she had capacity when she made it (MCA Code of Practice, para 9.67) but Jackson J did not consider that any weighted presumption of capacity was applicable. To the contrary ‘where evidence of capacity is doubtful or equivocal it is not appropriate to uphold the decision’ [para 55]. The girl’s parents, all the health professionals treating her, her independent mental health advocate and her solicitor had all believed that she had capacity at the time that she made the advance decisions. However, Jackson J held ‘on the balance of probabilities’ that she had in fact lacked capacity; only a ‘full, reasoned and contemporaneous assessment evidencing  mental capacity’ would have led him to a different view [para 65]. In the absence of such evidence he would not accept that she was competent.  In effect, he held that there is a presumption of incapacity in advance decision cases, despite the terms of section 1 of the Act. Further, that presumption carried considerable weight and only strong evidence would rebut it.

He then turned to consider whether treatment (i.e. force feeding) was in E’s best interests, as required under section 4 of the MCA in relation to patients who lack competence.

One might be forgiven for thinking that the arguments in favour of palliative care, allowing E to die were considerable. Jackson summarised them as respect for E’s wishes and her personal autonomy, sparing her the risks associated with and ‘harrowing aspects of’ treatment which had limited prospects of success and about which E’s parents and clinicians were ‘at best sceptical’, allowing her to die with dignity and close to home [para 115]. These had to be ‘balanced’ [para 114]  against the fact that,without forcible feeding,E would die and lose the 10-15% chance to recover and lead a relatively normal life (after 1-2 years of hospital treatment) [paras 113, 116]. Further, ‘the longer E lives, the greater the opportunity for her to benefit from treatment and to revise her views about her future’ [para 116]. ‘At its simplest, the balance to be struck places the value of E’s life in one scale and the value of her personal independence in the other, with these transcendent factors being weighed in the light of the reality of her actual situation’ [para 118].

Jackson J accepted that the MCA ‘might have given absolute priority to the preservation of life’ but had not actually done so [para 121]. In fact, the MCA gives no priority to any one factor, let alone an ‘absolute’ one, setting out the test as one of ‘best interests’. Further, the only reference to the value of life is to exclude anything ‘motivated by a desire to bring about [the patient’s]  death’ (s 4(5)). Jackson J seems to have created a presumption in favour of preserving life in his suggestion that only where care was futile should it be stopped; ‘the prospects of her making a reasonable recovery are highly uncertain, but it cannot be said that treatment efforts are doomed to fail or that treatment would inevitably be futile’ [para 122]. He also created a presumption that it seems almost impossible to rebut by characterising  ‘the balancing exercise [as] not mechanistic but intuitive and there are weighty factors on each side of the scales’ [Para 129]; an approach that makes the conclusion a matter of personal judgment not reasoned argument. Any criticism of the balance struck is therefore an attack on the opinion rather than rationality of the judge. No reasons are given for the striking of the balance, only a description of the factor that inform judicial intuition.

So a clear statutory presumption of competence was neutralised and a weighty judge-made presumption was inserted into a statutory framework that lacked one. This does not tell us that presumptions are not useful, but it does make us sceptical as to the uses to which they might be put.

Jonathan Montgomery

What kind of ‘problem’ is health tourism?

In 2012 on July 4, 2012 at 9:13 pm

Many members of HEAL have spent a very interesting two days exploring issues in law and global health at UCL. Amongst the areas that were discussed related to health ‘tourism’ – where people travel between countries to avail themselves of health services that are less available or affordable in their home nations. What is the nature of the legal issues that these activities raise? Are they best seen as issues of health law or are they better understood as examples of other legal fields?

As Sheelagh McGuinness and Jean McHale explored, there may be issues of protection from harm that are equivalent to those raised by female genital mutilation or child sex tourism where it is widely accepted that it is appropriate to use the criminal law to punish and deter that behaviour. They considered whether travel abroad for ‘donate’ organs for transplantation in return for financial reward might be in this category. Although this concerns a health procedure, it is not necessarily a health law issue. It more obviously turns on whether the grounds for invoking criminal sanctions in the UK for actions that take place abroad are met; an issue about the nature of the harm rather than the procedure by which it is inflicted.

Kerry Petersen’s paper showed a number of complexities raised by international surrogacy arrangements. Few  of these seem best seen as health law problems. Rather, they concern problems of status similar to those in ‘limping marriages’ where legal variations can lead to people having different marital statuses in different countries. Lack of clarity on parental status is the problem that leaves children vulnerable. The issues are about ‘conflict of laws’; a well developed field of law that is rarely connected with health law. Failure to protect against the commercial exploitation of the adults involved is a consumer law issue. International comity of rules on the enforceability of contracts seems to be an issue for commercial or trade law. In so far as particular groups are disadvantaged, is this best analysed as an issue of discrimination law?

If we focus on the policy issues that health law literature typically discusses – moral acceptability – we might be accused of moral colonialism when we seek to apply domestic standards to activities that take place abroad. In the Blood case, the policy on moral issues was set aside in favour of the economic law of the European Union. In Purdy, a degree of legal control was exerted over activities in the UK that would be illegal there even though preparatory to lawful acts abroad, but in the context of an unusually drafted statute that proscribes assistance in otherwise non-criminal acts and without any criticism of the overseas law (0n which variation is unsurprising, given expectations of a ‘margin of appreciation’, see Pretty v UK).

This seems an interesting illustration of problems in delineating our subject matter on which Jean McHale has already illuminated.

Jonathan Montgomery

DH Consultation on the futures of the HFEA and HTA

In 2012, Reproduction on July 2, 2012 at 9:00 am

The Department of Health launched today a consultation on the future of two key regulators, the Human Fertilisation and Embryology Authority and the Human Tissue Authority as part of the Coalition Government’s plan to cut the number of arm’s-length bodies and reduce bureaucracy announced in Liberating the NHS: Report of the arm’s-length bodies review (2010). The Public Bodies Act 2011 provided powers to transfer the functions of the HFEA and HTAto other bodies, but not to abolish them. Substantive change to the terms of the regulatory framework would require further legislation. The consultation runs until 28 September.

The logic of streamlining is that providers of health care are subjected to overlapping licensing/registration and inspectorate regimes that might be better co-ordinated, or possibly integrated into a single scheme of regulation under the umbrella of the Care Quality Commission (as in the preferred option). One test of this will be public confidence in the CQC, which has been criticised by the Public Accounts Committee and  seems likely to receive further adverse scrutiny in the report of the Mid Staffordshire NHS Foundation Trust Public Inquiry in the Autumn.

The research approval functions in relation to embryo research may no longer need to be separated out from the wider system of research ethics committees, supported by the Health Research Authority, as under the Human Tissue Act 2004 where the HTA licenses tissue storage but specific projects are approved by RECs. The preferred option in the consultation adopts this approach.

The consultation does not address the policy making functions of the two authorities. One important historical role of the HFEA has been to develop principled approaches to difficult ethical issues raised by assisted reproductive technologies. Work under way includes a national donation strategy, chaired by Professor Sheila Maclean, and work on public consultation on the use of techniques to prevent mitochondrial disease. It is not clear where such deliberative engagement and policy work will fit into the new regulatory landscape. Parliamentarians have expressed concern over the ‘democratic deficit’ in leaving such considerations to non-elected groups but this consultation document does not set out the thinking on the best way to resolve them in the future.

Jonathan Montgomery is Chair of the Health Research Authority but the views expressed here are personal only.

Howard League Commission on Sex in Prisons

In 2012, News on June 28, 2012 at 9:20 am

HEAL member Roger Ingham is to be a member of an independent Commission on Sex in Prison launched by the Howard League for Penal Reform 

The Commission  will focus on three broad themes:

  • consensual sex in prisons
  • coercive sex in prisons
  • healthy sexual development among young people in prison.

It will undertake the first ever review of sex inside prison where it is unlawful to have sex because prison cells are deemed to be public places.  There is currently little reliable evidence available on both consensual and coercive sexual activity in prisons. It is not known to what extent men and women who identify as heterosexual may have sex with other prisoners while in prison. The Commission will also consider coercive sex which could involve rape, harassment, intimidation, assault or bribery.

The purpose of the Commission is to understand the nature and the scale of the issues and problems, making a series of recommendations with a view to making prisons safer. It will also examine how the situation in England and Wales differs from other international contexts, looking for best practice.

The Commission on Sex in Prison will undertake primary research, conduct visits and hear evidence from experts. It is expected to publish briefings on interim findings and produce a final report at the end of the two year investigation

The Genetic Family in Question: Part II

In 2012, Genetics on June 18, 2012 at 8:17 am

This is the promised follow up to an earlier post  on the fascinating Interdisciplinary Dialogue event on ‘The genetic family in question’, held last month at the Morgan Centre, Manchester Uni. The morning session was devoted to two papers on ‘Being related: Blood, genes and gendered relationalities’; with Dr Janet Fink (Open University) speaking on ‘“Her husband will not come home until the little one is adopted”: marriage, adultery and the unsettling presence of the illegitimate child in post-war family lives’, and Dr Gill Haddow (University of Edinburgh) with ‘”We only did it because he asked us”: Gendered accounts of family participation in a population genetic data collection‘.

Janet’s talk was a fascinating foray into (now historical) practices around adoption following adulterous unions &  post-war family life, drawing on rich data from relevant charity archives (eg Moral Welfare Association, Salvation Army, Jewish Board of Guardians) as to the working policies in place at that time as to who ought to be helped (ie whose children could be placed for adoption) and who should not be assisted (depending on marital status, whether or not this was the first baby put up for adoption etc).

Gill’s talk provided some fascinating insights into her qualitative study with some of the participants of Generation Scotland – examining the recruitment strategies re encouraging familial participation in the study (in contrast with, eg UK Biobank, Generation Scotland recruits families for testing in order to explore inherited factors passed on within families). Gill explored gender differences in the reported accounts of the family members responsible for recruiting others (eg trends in who they tended to recruit), strategies of recruitment and reasons for participation (eg reciprocity, a means of a family member having a health ‘mini-MOT’ without realising); and also reflected on the limitations re recruitment in light of the realities of family life ~ eg lack of close kinship ties, falling out ~ which clearly impacts on which family members are asked, and which will participate.

Their abstracts and slides, together with those in the session on mtDNA, are now available here.

Jonathan Montgomery appointed to chair Health Research Authority

In 2012, News on June 14, 2012 at 5:05 pm

The Secretary of State for Health has appointed HEAL member Professor Jonathan Montgomery to chair the Health Research Authority, describing him as ‘a leading expert in healthcare law, genetics and bioethics, and in addition he has an in-depth knowledge of the NHS gained from working on two NHS Trusts, a Primary Care Trust and a Strategic Health Authority. His depth of knowledge and breadth of experience will be vital in helping the Health Research Authority to safeguard the interests of patients whilst streamlining health research regulations.’

Jonathan says “I feel privileged to be appointed to chair the Health Research Authority. My first public service role was on a local research ethics committee and I know how important they are to safeguard the interests of participants. We can be proud of our country’s contribution to health research. Even so, some of our NHS approval processes delay high quality projects, especially those involving a number of different centres. We will continue to work to ensure that it is easy to carry out ethical research so that we make our contribution to ensuring that the highest levels of human knowledge and skill can be brought to bear to save lives and improve health as the NHS Constitution promises.”

The appointment was noted in a House of Lords debate on the Health Research Authority (Amendment) Regulations 2012 and will be followed shortly by the appointment of a chief executive and non executive directors.

Jonathan will withdraw from his local NHS roles once handover arrangements have been agreed  and so will maintain his current work at the University of Southampton and his chairmanship of the Nuffield Council on Bioethics.