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Posts Tagged ‘Caroline Jones’

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.

Precarious Paternity?

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

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

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

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

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

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

Caroline Jones

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

(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

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

World first – UK Govt to back mitochondrial donation/replacement

In 2013, Genetics, Reproduction on June 28, 2013 at 7:50 am

The news this morning is again covering the mitochondrial donation/replacement debates, after Professor Dame Sally Davies, the Chief Medical Officer, announced yesterday that draft regulations will be published later in 2013 for public consultation, with the intention that the final version of the proposed regulations will be debated in Parliament in 2014.

These developments have been the subject of a number of consultations in the UK in recent years. The Government announcement focuses – understandably – on the HFEA’s consultations in 2011, on the safety and efficacy of the procedures, and in 2012, the public dialogue on the support or concerns held regarding the use of such procedures for ‘treatment cycles’ in humans (as opposed to research only, where the resulting embryos cannot be developed beyond 14 days due to restrictions on embryo research). However, the Human Genetics Commission first reported its conclusions in 2010 (HGC, since closed under the Arms’ Length Bodies Review of quangos); and in June 2012 the Nuffield Council on Bioethics published its report following public consultation.

In a shameless plug, in a recently published article Jones and
Holme consider some of the issues raised by mitochondrial donation/replacement. See further Jones and Holme,’Relatively (im) material: mtDNA and genetic relatedness in law and policy’, Life Sciences, Society and Policy 2013, 9:4, open access link: http://www.lsspjournal.com/content/pdf/2195-7819-9-4.pdf (alternatively, try http://www.lsspjournal.com/content/9/1/4).

HEAL Workshop 2012: Hidden Lawmakers in Health Care Law

In 2012, Meetings, Testing project on September 17, 2012 at 5:00 am

Today and tomorrow (17-18 Sept) we are hosting the second HEAL workshop on Hidden Lawmakers in Health Care Law. Previous posts on this research project can be found here and here.

Health Care Law is a relatively new legal discipline that until recently has been developed significantly through litigation. In recent years it has become apparent that the process by which cases come to be litigated may be less haphazard than at first appears. We are seeking to instigate discussion and further investigation of the role of such ‘test’ cases in developing the substance of Health Care Law.

Drawing on contributions to a two day seminar in 2011, funded by the Modern Law Review, a number of different categories of hidden lawmakers have been identified. This seminar seeks to take that work further in relation to a category of hidden lawmakers that emerged from the seminar and related discussions as requiring further study and consideration. It concerns those who intervene in matters that have come before the courts, to seek to influence the outcomes of the cases. It will bring together a group of invited participants including academics, clinical and legal practitioners, members of interest groups, and participants in influential cases to discuss and debate key aspects of the litigation process, and provide a sounding board for further exploration. The seminar will involve presentations by key participants combined with round table debates and discussions, both formal and informal, amongst the delegates.

Speakers include: Ann Furedi, BPAS; Josephine Quintavalle, CORE; David Lock, QC, No5 Chambers; Prof Rachael Mulheron, Queen Mary, University of London; Prof Laurence Lustgarten, Visiting Fellow, ELAC, University of Oxford and Prof Jonathan Montgomery, University of Southampton. Further details can be found here.

 

Current Legal Issues: Law and Global Health

In 2012, Meetings on May 21, 2012 at 8:00 am

The UCL Current Legal Issues: Law and Global Health programme for July 2-3, 2012, is now available here, and also with booking details/form, here. For the uninitiated this is the Annual Current Legal Issues Inter-Disciplinary Colloquium at the Faculty of Laws, UCL – these international colloquia have run since 1996 on a variety of topics, overseen by Prof. Michael Freeman.

This year’s colloquium is convened by Prof Freeman together with Dr Sarah Hawkes (UCL Institute of Global Health) and Professor Belinda Bennett (University of Sydney). The keynote speech will be delivered by Prof. James Orbinski (University of Toronto, see further info here). Further info about the speakers is available, as are the abstracts.

There is a bit of a HEAL Law team effort for this colloquium as Hazel and Caroline are giving a paper on ‘Vulnerability as a Legal Concept’, and John Coggon is speaking on  Global Health, Law, and Ethics: Human Interests, Fragmented Sovereignty, and the Limits of Universalism (John is joining us at Southampton later this year), and Jonathan Montgomery is chairing a session on Global Health Law.

 

mtDNA in Manchester: Exploring mitochondrial donation

In 2012, Genetics, Reproduction on May 16, 2012 at 8:23 am

Last week I participated in a fascinating Interdisciplinary Dialogue event around ‘The genetic family in question’ at the Morgan Centre for the Study of Relationships and Personal Life at Manchester University, organised by Dr Petra Nordqvist. This was linked to her project with Prof. Carol Smart on ‘Relative Strangers’ (the subject of last week’s blog post).

Coincidentally, both Dr Rebecca Dimond (Cardiff) and I offered papers on mitochondrial donation, so we were fortunate to have an entire afternoon session dedicated to considering the policy, law, social and other potential implications raised by these developing techniques – these are currently lawful for research purposes only (ie not lawful for use in the treatment of patients), following a licensing decision by the HFEA in 2005. Rebecca talked us through some insightful aspects of her interviews with family members with mitochondrial conditions, whereas my focus lay with the law and policy issues that may arise if Regulations are introduced to make lawful the use of these techniques in treatment. This area is, of course, subject to considerable attention in 2012 with the Nuffield Council on Bioethics due to publish its Report soon, and the HFEA in conjunction with Sciencewise-ERC due to undertake public dialogue later this year.

Our abstracts are below … a further post will follow on the morning’s session soon.

Relatively (im)material? mtDNA and genetic relatedness in legal discourse – Dr Caroline Jones

Mitochondrial donation poses the latest regulatory challenge for policy-makers in the context of assisted conception. In 2012 the Nuffield Council on Bioethics and the Human Fertilisation and Embryology Authority are consulting on ethical issues raised by this technique; including the potential relationships created by the use of three parties’ genetic material and the associated ramifications (eg whether or not there is a need to establish records of such donations and, if so, to whom should information be provided?) Hence, this technique poses both novel and familiar questions about ‘the genetic family’. This paper will explore the construction of the relative (in)significance of mitochondrial DNA in recent parliamentary debates, and current policy and consultation documents, in order to reflect on the ways in which the role of genetic connections – or lack thereof – are mediated in legal discourse and policy formation.

Who is the ‘third parent’? Mitochondria donation and implications for identity and kinship – Dr Rebecca Dimond

What is the link between mitochondrial DNA and a person’s identity?  What relationship does a woman have to a child conceived using her donated mitochondria?  These are key questions that the Nuffield Council on Bioethics have asked in exploring the ethical issues surrounding emerging techniques to prevent inherited mitochondrial disorders. There is currently no cure for mitochondrial disease but experimental reproductive technologies have now been developed which can allow women with mitochondrial disease to have children free from the disease. The technique involves replacing faulty mitochondria during an IVF cycle with healthy mitochondria from a donated egg. As the donated mitochondria (which contain a small number of genes) would be inherited by future generations, this technique requires a change in the law in order for it to be offered to patients and this has prompted calls for evidence by the Nuffield Council and HFEA. By drawing on interviews with patients with mitochondrial disease and media representations of the ‘three parent embryo’, in this presentation I consider how these techniques raise fundamental questions of identity and kinship.

Donor conception: interesting times

In 2012, Genetics, News, Reproduction on April 10, 2012 at 10:26 am

In the late 1990s the wisdom of choosing sperm donation/donor conception as the focus of my research was something that I was questioned about more than once. It was seen as a ‘dated’ subject; after all it wasn’t about the latest technological developments or indicative of where science or policy might go next. But, those concerns fell by the wayside in the early 2000s when this field hit centre stage once again, and it shows no signs of letting up a decade or so later. A cursory glance at the news in the last week or so gives rise to a range of stories:

  • From the ‘world first’ recommendation, in Australia, from the Victorian Parliament’s Law Reform Committee that all donor conceived people should have access to donor information, and where needed anonymity should be revoked retrospectively; further commentary and links are available on Bionews.

 

  • ‘Children of sperm donors should be told’ read one headline in The Independent (02 April, 2012; ie they should be informed about the mode of their conception – it does not seem that those interviewed were asked questions about the donor’s identity per se). 

 

  • The Nuffield Council on Bioethics is seeking written submissions of evidence by 15 May 2012 on ‘information disclosure’.

 

 

  • And last, but not least, ‘British sperm donor “fathered 600 children” was the lead headline for the Sunday Times (08 April, 2012); on 10 April 2012 this was ranked the ‘most read’ article in The Sunday Times on-line. This story later appeared in The Telegraph: ‘British man “fathered 600 children” at own fertility clinic’.  

Sometimes the ‘old’ questions or supposedly ‘settled’ issues give rise to the most interesting conundrums, in health care policy and law and beyond.