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Archive for the ‘Case of the week’ Category

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

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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

Case of the week: October 17, 1985

In Case of the week, Reproduction, Testing project on October 19, 2011 at 6:16 am

Throughout the 1980s, Victoria Gillick, a pro-life campaigner, undertook a legal battle. Her initial action was sparked by the 1980 DHSS circular (an update of the 1974 DHSS circular), which allowed doctors to provide contraceptive advice and treatment to under-16 year old girls – they were entitled to doctor-patient confidentiality and in need of protection from risks such as pregnancy and STDs. Victoria Gillick contacted her local Area Health Authority seeking assurance that none of her five daughters would be provided the contraceptive pill without parental consent. When this was not forthcoming she took legal action to challenge the provisions of the circular.

At first instance, she sought a declaration that the guidance was unlawful and adversely affected parental rights and duties. Her initial failure in the lower court was followed by success in the Court of Appeal where the Lord Justices unanimously agreed that the guidance in the circular was unlawful; hence doctors should not be able to give contraceptive advice and treatment to under-16 year olds without parental consent, except in cases of emergency.

The DHSS appealed to the House of Lords where they succeeded with a 3:2 majority. Lords Fraser, Scarman and Bridge accepted that if an under-16 year old was competent enough to understand the issues involved and the doctor believed it was in her best interests, then it was lawful for a doctor to provide contraceptive advice and treatment without parental consent. Lord Fraser’s guidelines gave rise to the ‘Gillick competence’ test, often referred to as ‘Fraser competence’, which is now widely used to assess issues of competence of under-16 year old children (including with regard medical treatment).  Gillick was the first legal recognition of the rights of under-16 year olds to give effective consent and remains the leading case in this area. The Gillick principles were reaffirmed in 2006 in Axon, R (on the application of) v Secretary of State for Health [2006] EWHC 37; see also coverage by the BBC.

This is a guest post by Emma Nottingham of the Law School, University of Southampton.

Case of the week: September 22, 2000

In Case of the week, Cases 2000, Death and dying on September 19, 2011 at 8:46 am

Re A (Children) EWCA Civ, Sept 22, 2000.  

The twins, named Jodie and Mary in the reports in order to preserve their anonymity, were born on August 8, 2000 in Manchester, after their parents travelled to the UK from Gozo, Malta (as it was known they were expecting conjoined twins and local resources were limited). They were joined at the lower abdomen/pelvis and – crucially – shared an aorta. Whilst Jodie was reported to have an ‘anatomically normal brain, heart, lungs and liver’, showing normal reactions to stimuli etc [para 6, CA transcript, below], Mary was reported to have a ‘primitive brain’, poorly functioning heart, and an absence of ‘functioning lung tissue’ [at 7], and was therefore dependent on Jodie for survival. The surgical team and hospital were in favour of surgical separation in order to maximise the chances of Jodie’s survival; the pressure placed on her heart in supporting both her and Mary was, according to expert evidence, highly likely to lead to the premature deaths of both children, whereas separation might enable Jodie to survive, albeit it that it would concurrently lead to Mary’s immediate death.

The parents disagreed, noting the influence of their devout religious faith (Roman Catholic) that it should be ‘God’s will’ to decide whether or not either or both of the children should survive. The hospital sought, and was granted, a declaration that the operation might go ahead – it was granted by Johnson J on 25 August 2000. The parents’ appeal was, a month later, dismissed by a unanimous Court of Appeal panel, comprised of Ward LJ, Brooke LJ and Robert Walker LJ. Unsurprisingly this case raised a plethora of legal and ethical/moral dilemmas for the court including – but not exhaustively – the role of parents in decision-making; questions over comparative ‘quality of life’ issues; welfare/best interests; murder, intention & the doctrine of necessity (in defence); role of religion; relevant aspects and intersections of Family Law and Criminal Law; & the sanctity of life (including some comments on the (then) forthcoming Human Rights Act 1998. However, the unanimity of the agreed outcome masks the divergent routes by which the individual judges arrived at their decisions.

For those who wish to read further, the case transcript is freely available to all via  BAILII:  http://www.bailii.org/ew/cases/EWCA/Civ/2000/254.html. Permission to appeal to the House of Lords was granted, but the parents chose not to appeal – nor was a direct application to Strasbourg (ie an alternative route to challenge the decision) undertaken.

Links

Coverage of the CA decision: http://news.bbc.co.uk/1/hi/health/937586.stm  

http://www.guardian.co.uk/uk/2000/sep/28/4?INTCMP=ILCNETTXT3487

Coverage of reactions to the decision: http://news.bbc.co.uk/1/hi/health/937377.stm

This decision is also reported at [2001] Fam 147, [2000] 4 All ER 961, [2001] 2 WLR 480, [2000] 3 FCR 577, [2001] 1 FLR 1, [2001] Fam Law 18, 57 BMLR 1; but access to these resources may be restricted (subscription required).