HEAL UoS

Archive for the ‘2013’ Category

HEAL: Winding Down for the Holidays

In 2013, Gratuitous self-promotion on December 17, 2013 at 8:38 am

The Centre for Health Ethics and Law (HEAL) has had a busy and exciting start to the 2013/14 academic year. In September we were delighted to welcome both Dr Natasha Hammond-Browning and Dr A.M. Viens to Southampton Law School. Natasha’s interests include stem cell research and start of life issues more broadly, especially with regard to regulatory bodies/frameworks and reform. A.M. Viens’ research focuses on ethics, legal theory and public policy, especially public health ethics and law, global health and emergency/disaster management. In light of our growing critical mass, HEAL’s structure has also evolved, with Dr A.M. Viens taking up the mantle of Deputy Director and Dr Caroline Jones the role of Director.

Over the course of the summer, our University website was entirely revamped; and our continued engagement on Twitter has led to both friendly banter on-line, and a lunchtime seminar on the A NHS Trust v DE [2013] case (the much-discussed Court of Protection decision authorising the sterilisation of a man with learning difficulties) accompanied by excellent tea. In all, since September, HEAL has hosted three other events, in addition to the second instalment of the ESRC funded seminar series on Criminalizing Contagion , led in Southampton by Dr David Gurnham.

Our first meeting in October focused on the Nuffield Council on Bioethics consultation on Children in Research. Our response can be read in full here:HEAL response to NCOB Children and Clinical Research ethical issues FINAL. In our concluding remarks, we made the following suggestion:
In terms of the provision of practical guidance in specific cases, where it is uncertain
which principles should apply, perhaps something akin to the intervention ladder used
in the NCOB (2009) Public Health: ethical issues report about how to approach
public health interventions would be useful to researchers. One could foresee some
framework that helps to guide researchers when encountering tough cases as to
whether they should be, e.g., seeking assent, whether or not they should be asking
parents for consent for sensitive research, etc.

We look forward to reading the NCOB’s Report on this complex area.

The next meeting was known colloquially as Jonathan Montgomery’s swansong for Southampton, as he moved on to pastures new at the Faculty of Laws, UCL. Jonathan’s paper on ‘What is Medical Law ‘for’?’, saw him present a wide-ranging argument that contained two challenges to key ideas about illegitimacy in medical law. The first questioned the practical nature of legal legitimacy more broadly, whilst the second looked at medical decision-making as compared with judicial decision-making. The paper forms part of an exciting, on-going debate with scholars including Professor José Miola at Leicester, and we’re looking forward to seeing it in print in due course.

In November, the Twittersphere met ‘real’-life, in a HEAL event dedicated to a discussion of A NHS Trust v DE, led by one of our 2006 vintage (i.e., graduates), Jess Connelly, and Dr Andreas Dimopoulos of Brunel Law School, whose different constructions of the use of the Mental Capacity Act 2005 in DE led to an interesting and engaged discussion. One question we are left with is the very way that health care law asks us to conceptualise persons, their rights, and the means of exercising health rights; would the law be more ethically defensible if we treat all persons as if they always have capacity, and does it even make sense to do so?

Last but not least in terms of events, this month Dr Andrew McGee from QUT spoke on a perennial debate in health law and bioethics; the act/omission distinction and end-of-life decision-making. Andrew combines a conceptual and a common-sense moral approach to analysing the law’s framing of causation, and generates a defence of the principle underpinning lawful treatment withdrawal in cases such as Bland. His talk, which was very well received, generated a stimulating discussion, defending a position that many scholars find — in the words of Lord Mustill in the Bland case — “both morally and intellectually misshapen.”

Meanwhile Dr Remigius Nwabueze and Professor Hazel Biggs have been flying the HEAL flag further afield, with Remi enjoying his research leave in Canada, and Hazel speaking on the ‘Legal aspects of cluster randomized truals under EU and UK Law’ at a recent Health Research Authority event.

Finally, as this is a ‘gratuitous self-promotion’ post, it would be shameful to miss the opportunity to embarrass John Coggon re his commendation at the BMA book awards in September, and to remind folk that he has co-edited two books that have come out this Autumn: with Swati Gola, Global Health and International Community ; and a volume led by A.M. Viens and co-edited too with Anthony S. Kessel, Criminal Law, Philosophy and Public Health Practice. It hardly needs noting that each would be a perfect stocking filler …

On that note, we wish you all the very best of wishes for a wonderful festive season – we’ll be back in 2014!

Caroline Jones, John Coggon & A.M. Viens

This week’s HEAL event: Andrew McGee on ‘Is Withdrawing Life-Prolonging Treatment Killing?’

In 2013, Death and dying, Meetings on December 2, 2013 at 8:10 am

 

Our next HEAL event will be on Wednesday 4 December from 3pm in building 4/room 3007, with Andrew McGee, from the Faculty of Law at Queensland University of Technology.

The title of Andrew’s paper: ‘Is Withdrawing Life-Prolonging Treatment Killing?’

Abstract:

This paper discusses recent arguments of Franklin Miller and Robert Truog about withdrawal of life-sustaining treatment and causation. The authors argue that traditional medical ethics, and the law, are mistaken to take the view that withdrawal does not kill the patient but merely allows the patient to die, describing such a view as ‘patently false’. In so arguing, Miller and Truog join a long line of academic criticism of the law that extends back to the seminal decision of Airedale NHS Trust v Bland [1993] AC 789 (HL) and beyond. In this paper, I take issue with the authors’ claims. I argue that there are reasonable grounds upon which traditional medical ethics and the law can regard withdrawal of life-sustaining treatment as allowing the patient to die rather than as killing the patient.

We look forward to seeing you there – if you could let Adrian know if you wish to attend, by emailing A.M.Viens@soton.ac.uk (so we can keep an eye on numbers) that would be appreciated.

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

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

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

Forthcoming HEAL events

In 2013, Meetings on September 30, 2013 at 11:50 am

Just a brief post today with two dates for your diaries:

1.  We will be discussing the Nuffield Council on Bioethics’ consultation on Children and Research, accessible here, on Wednesday 9 October, from 3.15pm until 5.15pm in room 2055/4, Highfield campus.

2. Jonathan Montgomery  will be speaking on ‘What is Medical Law “For”?’, from 4-6pm on Wednesday 30 October in 2007/4, Highfield campus. Sadly Jonathan is leaving us Southampton to move to the Faculty of Laws at UCL this autumn, so this is his last seminar as a fully-fledged HEAL member (but he will, of course, retain strong links to HEAL and the School, not least through our ongoing Hidden Lawmakers programme).

 

Caroline Jones