Posts Tagged ‘Hazel Biggs’

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

Prof Hazel Biggs debates ‘ranking’ patients for organ donation

In 2013, Organ donation on July 11, 2013 at 1:38 pm

This morning, on BBC Radio 4’s Today programme, Prof Hazel Biggs debated the ethics of ‘ranking’ patients for organ donation with Prof Bobbie Farsides of Sussex University.

A key question under consideration in the media this week (see also the Jeremy Vine show on Radio 2 this lunchtime, circa 1pm) is whether patients in need of organs – who themselves are on the organ donation register – should be ‘ranked’ higher than those who are not when a suitable organ becomes available; ie a form of prioritising patients according to their willingness to be an organ donor, as opposed to solely considering clinical needs.

Hazel spoke broadly in favour of this approach as a means (among other factors) to incentivise people to join the organ donor list, thereby producing more organs for donation; and raised questions around fairness and equity – ie, people needing organs who were not willing (as opposed to unable) to donate their own to others.

The programme can be accessed here.

Assisted Dying: Philosophical, Legal and Practice Perspectives

In 2013, Death and dying on February 25, 2013 at 9:00 am

On Wednesday 20th February 2013, sponsored by the International Centre for Nursing Ethics, School of Health and Social Care and the School of Law at the University of Surrey, four experts from different disciplines debated issues related to assisted dying. Focusing on the related themes of autonomy and dignity at the end of life each panel member spoke for ten minutes and offered their own perspective on the topic. The presentations were then followed by a lively debate between the panellists after which the floor was opened up to questions from audience members.

Ray Tallis, former Professor of Geriatric medicine and recently described as ‘one of the top living polymaths’ opened the discussion with an entreaty to autonomy. He argued that the wishes of those who are terminally ill and seek an assisted death ought to be respected and that the law should be reformed to permit that. Hazel Biggs, Professor of Health Care Law at the University of Southampton, then outlined some of the legal aspects of the debate. She explained that the law does not explicitly support autonomy or dignity, other than through the legal right to consent to or refuse medical treatment and used various examples of assisted dying to reveal deep inconsistencies in the legal approach to end of life decision-making. Barry Quinn, MacMillan Consultant Lead Nurse at Ashford and St Peter’s Hospital NHS Trust then introduced some practical perspectives, arguing that today death is remote from the living and encouraging everyone in the audience to think about ways in which they might be with the dying so that people at the end of life feel less alone and better cared for. David Albert Jones, Director of the Anscombe Bioethics Centre and Research Fellow at Blackfriars Hall, Oxford continued the debate on autonomy drawing on philosophical theory to support his argument that in some respects personal autonomy ought properly to be limited.

The animated debate that the individual presentations provoked, demonstrate that assisted dying remains a controversial and emotive topic that is never far from the public consciousness. Such discussions are invaluable in generating informed public opinion.

More information can be found here.

Choice at the end of life?

In 2012, Death and dying, Meetings on November 20, 2012 at 3:34 pm

On 23 October 2012 HEAL members met to discuss the All Party Parliamentary Group on Choice at the End of Life/Dignity in Dying consultation. This lively and informative discussion was followed up yesterday with an impromptu ‘meeting’ to finalise our response prior to submission. Sarah Wootton and Heidi Alexander made clear in their joint Foreword the purpose of the consultation, thus:

[Their]Our consultation seeks the input of experts, stakeholders and the public on how the proposals would work in practice and what would constitute adequate safeguards. The Bill is a draft and will be reviewed and revised in light of the responses we receive to this consultation. The APPG on Choice at the End of Life and Dignity in Dying are committed to promoting greater patient choice at the end of life, particularly over where, when and how one dies. We want to work with others to ensure not only that patients at the end of life have choice and control, but also, crucially, to ensure that the safeguards work well in practice.

HEAL has responded following our discussions – as one might expect there was some agreement with the proposals, and other areas raised greater concerns. Our full response can be accessed here (scroll down to p27).

Today’s HEAL meeting : discussing choice at the end of life

In 2012, Death and dying on October 23, 2012 at 3:42 pm

The next HEAL event will be on Tuesday 23 October from 4.30pm in rm 2055/building 4 (Law), led by Hazel Biggs, on the Safeguarding Choice consultation http://www.appg-endoflifechoice.org.uk/pdf/appg-safeguarding-choice.pdf. The consultation – which closes on 20 Nov – is being run by the All Party Parliamentary Group on Choice at the End of Life in partnership with Dignity in Dying, and includes a draft Bill (‘applying’ only to England and Wales).

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.


Across the Spectrum of Medical Law

In 2012 on March 9, 2012 at 9:53 am

Marking both the twentieth anniversary of the Medical Law Review, and the retirement (as Editor in Chief) of Professor Margaret Brazier, the latest issue of this journal explores some of her published work and its wider impact. The Foreword provided by Prof. Larry Gostein, begins:

“When I was young and Legal Director of MIND (now far too long ago), I travelled to the University of Manchester to meet two of the most remarkable people I have ever met. The first was a young scholar named Brenda Hoggett, who was working in my field of mental health law. Now Baroness Hale of Richmond, she is a leading intellectual force on the Supreme Court of the UK.

The other scholar was Margaret Brazier, who went on to found the modern field of medical law. During her career at the University of Manchester from 1971 until this day, Professor Brazier defined and clarified the hardest issues in medical law, established leading academic centres, and chaired major national policy committees. In the process, she has been awarded the most prestigious honours both within her field and from the country. She made a remarkable and enduring contribution to the academy through her leadership of the Medical Law Review. This issue is dedicated to Margaret Brazier to mark her retirement as Editor in Chief.

A journal issue in honour of Professor Margaret Brazier could just as easily have been devoted to her manifold contributions to the field of tort law. After all, her seminal works include both Street on Torts (Butterworths) and Clerk & Lindsell on Torts (Sweet & Maxwell)—just to give readers a flavour of the depth of Prof. Brazier’s impact on the legal academy. But for me, it was her leadership in the field of medical law that has been most remarkable. She was among a very small group of legal scholars in the world that demonstrated the remarkable interrelationships between law, ethics, and health. Medical law became a field in its own right that has deeply engaged researchers, students, and the public throughout the world.”

There is a strong Southampton/HEAL connection to Medical Law Review, as Prof. Hazel Biggs is now the joint Editor-in-Chief (together with Suzanne Ost, Lancaster University), and Prof. Jonathan Montgomery sits on the Editorial Board. Further, in this dedicated edition, both Jonathan Montgomery and John Coggon contribute papers marking Margot’s outstanding contribution to the field of Medical Law.

HEAL’s next meeting: 22 February 2012

In 2012, Death and dying, Meetings on February 17, 2012 at 8:32 am

HEAL’s next meeting will be on Wednesday February 22, 2012, at 1pm in 4/2007, where Hazel Biggs will lead a seminar on ‘The Death Commission’, drawing on the recent Report by the Commission on Assisted Dying. This is a follow up event to last year’s HEAL seminar on the parameters of the Commission’s consultation paper, led by Hazel Biggs, Jonathan Montgomery and Caroline Jones.

Steps in a right to die test case

In 2012, Death and dying, Testing project on February 9, 2012 at 11:40 am

In a recent article, ‘Guarding the gates of St Peter: life, death and law making’ (2011) Legal Studies 31, (4), 644-666, I argued that the decision of the House of Lords in R (Purdy) v DPP  [2009] UKHL 45 raised some serious constitutional problems about the role of judicial law making. Following that case the Director of Public Prosecution issued new guidelines on the decision to prosecute, but I have suggested that these have been essentially designed to distinguish suicide from homicide, not homicide from euthanasia. As Hazel Biggs has argued, they are therefore ‘largely ineffectual in the broader context of the debate about assisted dying’  (‘Legitimate compassion or compassionate legitimation? Reflections on the policy for prosecutors in respect of cases of encouraging or assisting suicide’. (2011) Feminist Legal Studies, 19, (1), 83-92.  We should not therefore be surprised that they have already given rise to challenge in the courts by people who feel that the law on assisted dying is unacceptable.

Tony Nicklinson’s case has already been before the courts twice on preliminary issues. First whether the DPP’s guidance exposed those giving advice to him on his options to the risk of prosecution because it identified professional involvement as an indication in favour of prosecution. In this first step, the court permitted doctors and lawyers to help him prepare his case and talk to individuals or organisations – including Dignitas in Switzerland – which might be able to assist him: “the solicitors may obtain information from third parties and from appropriate experts for the purpose of placing material before the court and that third parties may co-operate in so doing without the people involved acting in any way unlawfully”. In the second step, on which a ruling is awaited, the Ministry of Justice has sought to have his challenge to the law struck out as having no realistic prospect of success because the law is clearly established and only Parliament could change it.  We await the judgment of Charles J on this matter.

Jonathan Montgomery