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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.

At Tale of Two Citadels travels to SLSA Aberdeen

In 2014, Gratuitous self-promotion, Testing project on May 8, 2014 at 11:33 am

In April 2014 I travelled up to Aberdeen for the annual SLSA conference, hosted by the Law School, Robert Gordon University, to deliver our paper on ‘Two Citadels’ in the Medical Law stream. Aberdeen is a great, albeit expensive city to visit (well, mid-week anyway – that’s oil money for you). There was a huge array of papers in parallel streams, with the inevitable difficult choices that this invokes for attendees – there are always papers you would have liked to hear but – in the absence of Potter-eqsue ‘Time Turners’ – the timing did not permit. The full programme can be found here ParallelSessionSummarySLSA2014.

Glenys Williams, convenor of the Medical Law & Ethics stream, put together an excellent programme. The first session focused on various and fascinating aspects of abortion, space, community, history and conscientious objection (and more), featuring Joanna Erdman (Dalhousie), Ruth Fletcher (QMU) and Michael Thomson (Leeds). It was a lively and engaging session, and a superb start to the conference.

After coffee, Claire Lougarre (UCL) and I shared the next session, giving plenty of time for questions and discussion for both papers, which was a real gift. Claire gave a thought-provoking and engaging account of her PhD research on the scope of the ‘right’ to health, something that she and Jonathan have already and I’m sure will continue to enjoy discussing ‘up’ at UCL. With Jonathan in Warsaw on NCOB business, and in the absence of a cardboard cutout of him (to direct any awkward question to …) it was left to me to present the latest iteration of our work in progress: ‘A Tale of Two Citadels: Competing Narratives in a Case Biography’, drawn from our British Academy/The Leverhulme Trust funded project ‘Test case biographies as a method for studying hidden law-making’.

The case study in this paper, focusing on the decision in AC v Berkshire West PCT [2010] EWHC 1162 (Admin) and on appeal [2011] EWCA Civ 247, starts from the position that legal cases are complex social phenomena. They have histories – and they link past and future events in a present encounter. There are established doctrinal approaches to ‘understanding’ cases, and situating their significance within a legal context according to institutional rules (ratio decidendi, obiter dicta, stare decisis, and per incuriam, for example). However, it seems valuable to us to seek to understand alternative ways of mapping cases in the Health Care Law context; exploring, for example, the parties’ understanding of the dispute (a specific dispute, or part of a campaign? Possibly a legal campaign, but alternaively one of a different character again?); also the lawyers and judges involvd have careers in which a specific case will play a part.

Our desk based research, for this case conducted largely by Alex Chrysanthou, has sought to explore the chain of case law leading into and(less significantly, currently) leading out of the AC case, and the network of legal personnel directly involved in this case (which will need further reflection). Our third line of enquiry, undertaken by me, has been to examine the interpretation of this case by legal reports and commentators. This research indicates that the choice of competing narratives began to take shape long before the issue is argued before a judge – i.e., is this about NHS resource allocation, or about transgender legal rights?

The questions, comments and responses from those at the Medical Law and Ethics stream were thought-provoking and will be invaluable in moving the project forward (not least in terms of encouragement as people said how interesting they thought the project was). Also, we look forward to presenting this work again at Southampton next week, at a dedicated event on Hidden Law-Making and Case Biographies – and for the opportunity for further reflection on the next phase of the project – but more on that event to follow in a future blog post.

Caroline Jones

Methods and Discipline in an Interconnected Bioethics

In 2014, Bioethics on April 29, 2014 at 8:45 am

I’m writing this blog post in a rather august atrium in the University of Vienna (long story), but it actually relates to a talk I gave last week at Monash University’s campus in Prato. It was one of the most stimulating, fun, interesting, and generally enjoyable conferences that I’ve been to , and was the final meeting of a group led at Manchester, looking at the Human Body, its Scope, Limits, and Future (a project on which I was previously employed).

As well as four problem-led strands, considering questions such as the use of bodily materials and human enhancement, the project had a cross-cutting focus on methods in bioethics. Given some activity of mine in relation to this (most notably my co-editorship of a special issue of Health Care Analysis), I was invited to speak to this aspect of the project. I was delighted, but also a little daunted: whilst scholars such as Jon Ives, who was at the conference, and Mikey Dunn are very much ingrained in these discussions, I’ve had more of a ‘reflective’ and ‘external’ interest (hence my heavy use of scare quotes here, even by comparison to my generally high usage).

My talk took as its impetus a few themes, but a key one was found in (ahem) a slightly caricatured representation of a wonderful paper by my former colleague Iain Brassington. It’s a wonderful paper, but one whose emphases have me raise my own questions about what normative theory means within bioethics, and whether we should focus on what individual disciplines bring individually, rather than in some sort of conjoined activity.

Iain sees a great importance for philosophy in bioethics because (as do I) he sees bioethical analysis as being directive; action-guiding. His paper is available open-access, so I’d encourage readers to digest the full argument, but to reduce some of it to Iain’s own words: “philosophers are simply more likely to be good at thinking about problems of (say) justice and just policy than are non-philosophers, just as biologists are more likely to be good at thinking about problems in ecology” (p. 29).

I am not sure about this.

Part of the merit of philosophical analysis, for Iain, is that it allows abstraction from context and thus the better scrutiny of reasons. Yet I am not sure, when we think of ideas concerning obligation, that we can so easily segregate the world we are analysing into components that reflect the ‘silos’ that our disciplinary backgrounds sometimes purport to reflect. My own legal analysis is heavily influenced by works in moral and political theory. But it is also held in some sort of check by a reminder of Raymond Geuss’ pugnacious challenge to moral and political philosophy. When (as often happens in bioethics) the context of obligation is rooted in professional, legal, institutional, social, and other systems, abstraction can remove too much. And actually, despite Iain’s claim, I’m not convinced that philosophers particularly are better at the relevant kinds of conceptual and analytical methods. (It’s an interesting empirical claim, anyway.)

Without the sort of analysis that philosophers can bring, Iain sees a danger of bioethics become plain description or zealtory. And he closes his argument by suggesting that if others do bring the sort of analysis he’s speaking about, it’s probably philosophy that they’re doing after all. So philosophy keeps its pre-eminent position within bioethics.

For me, the importance of practicability in practical ethics suggests a need for much less of a focus on disciplinary prowess, and a far greater need to share ideas; to communicate between disciplines and with others (such as practitioners, folk in policy, and so on). This concept of public ethics resonates with Jonathan Wolff’s ideas, and Iain’s paper read in the light of Wolff’s work here gives, I would argue, a better idea of the role of philosophy within bioethics. The philosophical understanding is important, but no more important than that brought by other disciplines and some sort of qualified resignation to the status quo.

To be clear, my apparent bioethical ecumenicalism here is not based on a concern rooted in bland respect for different disciplines. Rather, it is based on the view that the universe, its orders, and its inhabitants are, when dragged into theory, conceptually a lot less crisp than abstracted normative analysis often allows. Disciplinary humility is as important as celebration of disciplinary advantage.

As for the upshot in regard to methods: for whatever it’s worth, my view is that there is so much that different disciplines can bring, and so many different sorts of problems to look at, that there is little good to be gained from finding the method for bioethics (not something, to be clear, that Iain was claiming to do). Rather, our focus is better placed on ways of approaching problems, and from there working towards the best engagement of collaborators. In this sense, bioethical analysis will not always require philosophers, and to be action-guiding will need normative theorists who are willing to come back from abstraction to a messy, complex, conceptually compromised world.

John Coggon

This week’s HEAL event: Ethics, Embryos and Evidence: A Look back at Warnock and the Human Fertilisation and Embryology Acts

In 2014, Meetings, Reproduction, Research ethics on April 28, 2014 at 9:00 am

This week’s HEAL event is a joint Law School staff seminar/HEAL seminar, to be led by Dr Natasha Hammond-Browning speaking on ‘Ethics, Embryos and Evidence: A Look back at Warnock and the Human Fertilisation and Embryology Acts’. This event will run from 1-2pm in rm 2055/4 (Law), Highfield Campus, on Wednesday 30th April. All welcome.

Abstract
The law in England and Wales concerning embryo research, the Human Fertilisation and Embryology Act 1990 as amended by the Human Fertilisation and Embryology Act 2008, is considered by many countries to be a model to be followed in outlining their own embryo research legislation. The Act permits embryo research within a defined set of limits, thereby taking a controlled but permissive stance.

Although the legislation carefully controls the research which is undertaken with human embryos, there are many opponents of embryo research who would like to see such work outlawed. This paper examines how the UK legislation come to take such a permissive stance in an area which still raises controversy and around which there is a vast range of diverse ethical opinions. In order to determine how the legal stance that the UK currently has towards embryo research was reached, this paper examines the path to legislation, subsequent reform and considers how diverse ethical opinions were taken into account.

How and why do we value scientific freedom?

In 2014, Conferences, Gratuitous self-promotion, Publications on April 7, 2014 at 12:54 pm

With teaching over, it’s good to have a bit of time for writing and going to conferences. I’ve just got back from a trip to Rome, where I attended the third meeting of the World Congress for Freedom of Scientific Research. The meeting is a key event hosted by the Luca Coscioni Association, which aims to eradicate undue bars to science and innovation. With Simona Giordano and Marco Cappato, I edited a book on Scientific Freedom following the first of these Congresses. As well as existing in hard copy, it is available here open access.

The Congress that just took place focused on the relationship between science and politics. In my own paper, I raised issues about the central place that the public interest should take in our analyses and evaluations of scientific freedom. This cuts against some of the received wisdoms amongst members of the scientific community, who are wary of the public interest (or in related literatures on the national interest). The wariness is born of concerns that the public interest will simply be given as a dogmatic, knock-down argument against good science, with no sound rationale behind it. Whilst we should be alive and responsive to such concerns, if we are to advance scientific programmes, we also need to be able to explain how these serve the public interest.

Scientific freedom is not just a ‘negative right’; a right to be left alone (and even in instances where it is, it can still impose positive claims and costs on the State and others). And really, advocates for scientific freedom are anyway asking governments not only to permit, but also to protect and indeed promote science. In doing this, we see important roles for law and regulation, providing both a shield, where defences are needed of scientific activity, and a stage, where publicity and education are needed. In my paper, I aimed to capture the reasons for this, and to explain that those in the scientific community need to understand why the public interest may at times legitimately constrain, as well as advance, science.

The event in its entirety was quite intense, with a great range of speakers and papers. Although it was built around a shared agenda, there was nevertheless a fascinating variety of perspectives. Furthermore, the span of insights afforded was astounding. Speakers included scientists and other academics, but also activists, politicians, people working in policy, journalists, and jurists. I left with a sense that many of the practical upshots of the meeting will arise as individual developments. ‘Science’ is vast and varied. But the general movement, and the added momentum that can be found when people with associated interests come together, will add to the power of such developments.

John Coggon

Ben Goldacre & patterns of public policy

In 2014, Research ethics on March 31, 2014 at 8:49 am

“The patterns of public policy … are determined not only by such final decisions as votes in legislatures, … but also by the fact that some subjects and proposals emerge in the first place and others are never seriously considered.” John Kingdon

Hazel Biggs and I enjoyed Ben Goldacre’s recent discussion of ‘Medicine and Money’, part of the Nuffield Theatre’s inaugural Fulcrum Southampton: A point of balance between science and art, held over three days on 21-23 March 2014. His fast-paced impassioned talk focused, unsurprisingly, on the problems regarding the non-reporting of clinical trial data and what this means for medicine, money/government spending, patients, i.e., ‘us’ public in general. When considering exactly what this might mean, and the apathy that sometimes results – it’s not about ‘me’, has little or nothing to do with ‘me’, why is this really a problem etc – he flagged up the ‘dead babies’ problem. That is, the (potential) natal fatalities that have resulted as a result of the precautionary non-use of medicine, due to a lack of knowledge regarding side-effects of use on pregnant women (as clinical trial data was not published), when using the substances in question may have saved many lives. (This write up is inevitably ‘couched’ as – in law – causation would need to be proved: once a Tort lawyer …).

Interestingly, Ben Goldacre tweeted this message last Friday afternoon:

ben goldacre (@bengoldacre) 28/03/2014 15:43
Fab briefing by Parliamentary Office Sci Tech @POST_UK on withheld clinical trials bit.ly/1h0kJIP #alltrials Unimaginable 2 yrs ago

The POSTNOTE referred to is a briefing paper on issues around increasing transparency of clinical trial data. It’s the last part of the tweet that grabbed my attention: ‘unimaginable 2 yrs ago’. It reminded me of John Kingdon’s seminal text on pre-decision public policy processes, in which he provides a compelling and authoritative account of the messy world of public policy formation. His starting point is the question: ‘what makes an idea’s time come?’ He identified two categories of potential factors that may influence agenda setting and consideration of alternatives, namely i) participants, and ii) processes. These categories are further refined into i) participants inside and those outside of Government, and ii) problem recognition, policies/the generation of policy proposals and politics/political events. At crucial points problems, policies and politics meet, are coupled together, and according to Kingdon, it is at these junctures that the ‘greatest policy changes’ emerge.

It may be too early to determine whether or not the activities of those participants outside (see especially All Trials) and inside Government – during this month’s Southampton talk Ben Goldacre credited Dr Sarah Wollaston MP for her pivotal role in bringing this issue to the (agenda) table – together with ‘events’ such as the MHRA reportedly ‘shredding’ documents pertaining to the efficacy of Prozac, after 15 years on file, will inevitably lead to a sustained policy change. But, if anything, this seems more likely now than ever.

Caroline Jones

(More) HEAL teaching outside the Law School

In 2014, Genetics, Gratuitous self-promotion, Reproduction, Teaching on March 24, 2014 at 8:31 am

Following on from John’s post last week, about teaching on the MSc in Public Health Nutrition, I recently led a session on ‘identity’ for the CIP module Ethics in a Complex World. The module is led by Dr Julie Wintrup and therefore ‘housed’ in Health Sciences. But, it draws in (a lot of) contributions from the Law School, not least from our current Head of School, Professor Hazel Biggs, who co-led a number of the initial large-group sessions this semester, alongside Professor Roger Ingham (Psychology), and Dr Angela Fenwick (Medicine). Both John Coggon and A.M. Viens will also be making cameo appearances later this semester.

As the list of names and disciplines in the preceding paragraph suggests, this is a truly inter-disciplinary module. For the teaching team this demands some reflection on ‘our’ respective disciplinary boundaries and assumptions – not only in setting up the overarching aims and objectives, but down to the detail of selecting the ‘what and how’ of discrete sessions/topics, and indeed the assessment(s). In turn, the diverse student body bring their own disciplinary, and other, assumptions, life experience and questions to the table, both in the large and small group sessions – raising some excellent questions for further engagement, analysis and reflection. The other colleagues can be quite challenging with their questions too, which can only be a good thing! Further, the team actively engages with social media throughout the course, and as I was speaking Fiona was ‘Scoop’ing, and Julie tweeting.

I was part of the core group that set up this module, but had to step aside this year due to other commitments, so it was a real pleasure to return for a ‘guest’ spot, and to (re-)consider donor conception, mitochondrial donation and identity matters (after thinking about hidden law-making for a fair while – more news on that project to follow in a future post). As John made clear last week, these types of sessions are not about ‘instructing’ people as to the ‘correct’ answers to ethical issues, but rather to provoke reflection.

Certainly, in terms of academic study, legal developments and policy-making, interest in donor conception has waxed and waned over the decades. We seem to be in a ‘waxing’ phase, inasmuch as this area was the subject of a dedicated NCOB Working Party and Report in 2013, and is linked to the debates around mitochondrial donation, including a 2012 NCOB Report and the current DH consultation on the Draft Regulations on mitochondrial donation (i.e., how should we treat egg/mitochondria donors in this context?). I was privileged to be asked to give evidence on the regulatory aspects of donation to the former Working Party, and to have my research referenced within its Report (fn 112, 397); further, being involved in an evidence session for the latter Working Party, and being invited to comment on the draft Report.

But, no matter what can be said about the academic treadmill – whether for the good, the bad, or with indifference – it is still the greatest privilege to introduce people to new areas and/or ideas, and ask them to have a re-think about their assumptions, and in doing so to continue to challenge your own thought processes and rationale(s).

Caroline Jones

Seminar of interest: ‘Using the owned home to fund social care’, 19 March 2014, Southampton

In 2014 on March 18, 2014 at 2:23 pm

Tomorrow, Dr Emma Laurie and Professor Nick Hopkins (formerly Soton, now at Reading), will be giving a Law School staff seminar on ‘Using the owned home to fund social care: assessing the legitimacy of the Care Bill through the social contract’ at 1pm in rm 2055, building 4, Highfield campus.

AbstractThe funding of adult social care is undergoing reform through the Care Bill with the overriding objective of achieving “fairness”; in particular by ensuring that the home does not have to be sold during the lifetime of the owner to fund the cost of care and to limit the extent to which wealth accumulated in the home is used for that purpose. Increasingly, the responsibility to fund certain aspects of welfare has shifted to the individual and is linked to releasing the financial value in the owner-occupied home. There is a growing body of literature concerned with this phenomenon of asset-based welfare. We assess the extent to which it is legitimate for the government to require owner-occupiers to draw on the equity in their home to fund social care. We locate this enquiry within the framework of social citizenship and, specifically, the new social contract. We identify that the Care Bill raises issues of concern for intergenerational justice and has the potential to imbalance the social contract. Nevertheless, the consistent way in which the ideology of home ownership has been promoted justifies treating the home more favourably than other assets – at least for the current generation. We argue, however, that incremental change would protect current legitimate expectations of home owners but would enable the intergenerational imbalance to be corrected over time.

HEAL teaching outside the Law School

In 2014, Public Ethics, Teaching on March 17, 2014 at 8:34 am

There’s been lots going on in HEAL over the last couple of weeks, with various research papers being presented on campus, development of a HEAL consultation response regarding organ donation after brain death, and A.M. Viens jetting off to Copenhagen where he was co-organsing a conference on Public Health Ethics. Further to all this, and of course the regular path of the academic treadmill, I recently taught at the medical school to students on the MSc in Public Health Nutrition. It’s always interesting to deliver teaching outside of the familiar disciplinary frame. For this class, I was charged with introducing ideas about public health ethics, law, and governance. This means bringing a philosophical focus that places many of the students on the course outside of their academic comfort zones.

Such a foray into ‘alien’ literatures and methods means that the teaching raises distinctive challenges both for the tutor and the students. A complexity for the students in this context comes in the open nature of many of the questions asked when bringing philosophical approaches to the curriculum. In particular, this strikingly relates to questions concerning the very meanings of public health practice, and public health ethics. For example, I got very interesting and mixed answers on whether or not I, or Penny Nestel who runs the course, can be said to work in public health.

The productivity in exploring such questions doesn’t arise in reaching the ‘right’ answer. Rather, it’s about the critical self-reflection and questioning that they trigger in the students. People who study on courses such as our MSc are motivated to work in health promotion; they are committed to what Larry Gostin characterises as an article of faith in the great importance of health. My purpose in bringing a philosophical analysis to the education is not to lessen that faith, but to invite the students to scrutinise the strength and substance of its foundations.

I find the reward of this sort of teaching really comes out in the small- and whole-group discussions. A vast range of interesting ideas and questions were raised at the recent session. I’m looking forward to starting teaching the full, ten-week course on Public Health, Law, and Ethics with A.M. Viens later this year on the MSc in public health. We’ll be able there to explore philosophy and public health in a much more sustained, and deeply engaged, way.

John Coggon

This week’s joint ICJR/HEAL event – Dr John Coggon on ‘Legal Moralism and Long-Game Healthism? – the regulation of smoking’

In 2014, Meetings, Public Ethics on March 11, 2014 at 3:10 pm

This week we have a joint ICJR/HEAL event on Wednesday 12 March 2014, from 4pm in Building 54, Room 10037 (10th Floor), with John Coggon speaking on ‘Legal Moralism and Long-Game Healthism? – the regulation of smoking’.

Abstract This paper is concerned with coercive policies and regulatory strategies that aim at a prohibitionist end whilst avoiding individual legal measures that would individually provide an outright ban on an activity. It compares jurisprudential debates regarding legal moralism, which concerns the use of law as a mechanism for enforcing moral norms, with debates in public health ethics about healthism, which refers to an ideological political agenda aimed at making people behave in ways that (apparently) promote their health. It then takes as its focus the ‘end game’ agenda in tobacco policy; a strategy designed ultimately to mean that smoking will be eradicated. Against the background of ideas designed to legitimise such health policy—such as those entailed in ‘libertarian paternalism’—the paper examines whether long-game strategies avoid or are subject to concerns that apply to immediate prohibitions. In short, it explores the question: if on principled grounds we could not ban smoking overnight, (why) is it acceptable to do so over a decades-long period?