HEAL UoS

Posts Tagged ‘John Coggon’

What is ‘proper medical treatment’?

In 2013, Conferences, Key Legal Concepts on September 18, 2013 at 7:52 am

It makes a big difference to the legal, social, and to many minds moral acceptability of interventions to know that they are—or are not—‘proper medical treatment’. In English medical law, even for people who aren’t found to lack decision-making capacity, consent alone is insufficient to make an intervention lawful; it has, according to some external standard, to constitute treatment that serves a person’s interests. But where does medicine find its legitimacy? What about a medical act attracts legal protection when a qualitatively identical act undertaken by a non-medic would not be deemed to serve someone’s interests, and be criminal? How far can ‘medicalisation’ legitimise what would otherwise be beyond the pale; assisted dying, cosmetic procedures, and so on?

In an impressive, wide-ranging series of discussions at a conference I attended last week, some of the key questions were raised and explored about how we understand ‘proper medical treatment’, and challenges were made to the reverence that we might offer it. The meeting, organised by Sara Fovarague and Alex Mullock, was built on the theme “Transforming wrong(s) into right(s): The power of ‘proper medical treatment’”. The legitimacy—or as Margot Brazier suggested on Thursday perhaps the magic—of medicine, forestalling prosecutions for what would on their face be criminal acts, is found in the legal concept of the ‘medical exception’. But to be proper, it is insufficient simply that treatment is given by a doctor, or even that its provision is recognised and endorsed in the professional opinion of a number of doctors. Coming to a clear understanding of ‘proper’ is as hard as coming to a clear understanding of ‘medical’. Yet these terms have crucial importance in practice.

I was lucky enough to be a discussant on a panel with speakers Julian Sheather and Cam Donaldson, who respectively interrogated the theme from political and economic perspectives. Julian demonstrated how political ends can be achieved through medicalisation, even in the face of serious objections from the profession itself, whilst Cam provoked interesting questions about how a health economist might assess the idea of ‘proper’ in proper medical treatment. Cam also made clear how important it is to include a health economics perspective in these ethical and legal debates.

Reflecting on the ideas from a legal perspective, I would question—regardless of whether we are convinced by the moral weight of designating something ‘proper medical treatment’—how much conceptual grip we can get on the idea of medical treatment by looking at what judges, practitioners, and policy-makers have to say. If the NHS is to afford what amounts to a right to healthcare, and if we are to recognise the importance of healthcare practitioners’ expertise, it seems inevitable—and right—that we should conceive of robust central cases of medical treatment. But at the fringes, there will be fuzzy, contestable claims about whether something should be seen as proper treatment or not. In those instances, we may look to decided cases and existing regulations, but the bases of their rationales will be wide and varied: for example, tax law cases based on European Union law; individual claims for intervention based on the European Convention on Human Rights.

A strong degree of coherence is needed if we are to enjoy a healthcare system whose legal and ethical rationale is not arbitrary. Yet too constraining a rationale will stifle innovation, and damage protections of plural values that healthcare law protects. A project aimed at understanding ‘proper medical treatment’ is an important one. At its end, I wonder if an exhaustive definition will necessarily be the best one.

John Coggon, Southampton Law School.

ESRC Sponsored seminar: Criminalizing Contagion – legal and ethical challenges of disease, transmission and the criminal law

In 2013, Meetings on September 10, 2013 at 7:00 am

Today we are exploring ideas around the legal and ethical challenges of disease, transmission and the criminal law, during the second in a four part series of seminars funded by the ESRC on Criminalizing Contagion, a joint project between Southampton Law School and Manchester Law School, led by David Gurnham, Catherine Stanton and Hannah Quirk.

In the morning session, Dr John Coggon spoke on ‘Epistemic and communicative duties in public health ethics’, followed by Prof Maggie O’Neill of Durham Uni speaking on ‘Transgressive imaginations: sex work, abjection and contagion.’ The final part of the opening session was a paper by the BBC South Health Correspondent David Fenton, who gave us an insider’s take on the media & reporting in his paper on ‘Reporting pandemics – a perspective from inside the Newsroom.’ All papers gave rise to an engaging, interesting and lovely round of questions and discussion, which continued over lunch.

This afternoon’s session on ‘Evaluating Law’s Responses’ will begin with
Dr Lucy Stackpool-Moore, SOAS, on ”The intention may not be cruel … But the impact may be’: understanding the legislators’ motives and wider public attitudes to a draft HIV Bill in Malawi’, followed by Mr Peter Greenhouse, Consultant in Sexual Health and BSHH, Media Committee Chairman, speaking on ‘Herpes and the Law: a misuse of process?’.

It has been a fascinating day, and it will be very interesting to see how the project unfolds in the final two seminars in the series. More news on that here in the future!

JME Editor’s Choice: John Coggon on Elective Ventilation

In 2013, Death and dying, Public Ethics on February 21, 2013 at 7:27 am

The latest issue of the Journal of Medical Ethics (JME) is a special issue focused on ‘Elective Ventilation’. John Coggon’s paper – which he delivered as a HEAL seminar last year – has been selected as the Editor’s Choice, hence it is open access and can be read in full here.

Abstract This paper examines questions concerning elective ventilation, contextualised within English law and policy. It presents the general debate with reference both to the Exeter Protocol on elective ventilation, and the considerable developments in legal principle since the time that that protocol was declared to be unlawful. I distinguish different aspects of what might be labelled elective ventilation policies under the following four headings: ‘basic elective ventilation’; ‘epistemically complex elective ventilation’; ‘practically complex elective ventilation’; and ‘epistemically and practically complex elective ventilation’. I give a legal analysis of each. In concluding remarks on their potential practical viability, I emphasise the importance not just of ascertaining the legal and ethical acceptability of these and other forms of elective ventilation, but also of assessing their professional and political acceptability. This importance relates both to the successful implementation of the individual practices, and to guarding against possible harmful effects in the wider efforts to increase the rates of posthumous organ donation.

Jonathan Montgomery’s paper on ‘Public Ethics’ is published

In Public Ethics on January 11, 2013 at 5:32 pm

Jonathan Montgomery’s paper on the nature of ‘ public ethics’ has now been published in the Cambridge Quarterly of Health Care Ethics. Based on a presentation at a seminar on organ donation at the University of Keele, it reflects on the processes by which the Organ Donation Taskforce reached its conclusion not to propose a ‘presumed consent’ model for organ donation. It draws on the Jonathan’s experience as a member of that Taskforce and of other bodies charged with exploring ‘public ethics’, including the working party of the Nuffield Council on Bioethics on Public Health Ethics.

Jonathan argues that ‘public’ ethics is a much more contingent process than academic work and needs to (a) take into account contemporary policy debates, (b) be expressed in terms that are sufficiently close to the prevailing professional discourse to have a reasonable hope of reception, (c) assess how positions will be represented in the media and what behavioural changes will follow in the actual political context, (d) create workable compromise formulations, from which people can reason even if they reach them by different arguments.

Critiques of ‘public ethics’ need to take these features into account. He discusses the way in which a key concept in the Nuffield Council’s Public Health: Ethical Issues report, ‘stewardship’, has been examined and criticised by academics (including fellow HEAL member John Coggon in both his seminal book What Makes Health Public? and articles in the Journal of Medical Ethics and the Northern Ireland Legal Quarterly). Jonathan contends that the approach taken in the report is both explicable and defensible when seen as an exercise in public ethics, even though it may be more difficult to defend as an academic position. Criticism needs also to be sensitive to the fact that pronouncements on ‘public ethics’ are an exercise in persuasion whose audience is not academics. This may excuse the use of familiar but imperfect paradigms for analysis and a degree of compromise between committee members. It does not justify incoherent arguments.

Jonathan goes on to argue that there are some specific issues which present a greater challenge for ‘public ethics’ than for personal academic contributions. He suggests that greater attention must be paid to the difficulties for ‘public ethics’ of dealing with public opinion and seeks to explain how the Organ Donation Taskforce took into account public views it thought were based on flawed assumptions. He examines how bodies charged with considering ‘public ethics’ should address controversies where lay and professional understandings of what counts as evidence diverge. He also considers the implications of the contingencies of the socio-political contexts for ‘public ethics’ for analysis based on comparative work (both over time and between countries). This is a commonly used approach, but fraught with difficulties.

John Coggon on Elective Ventilation for Organ Donation: Law, Policy, and Public Ethics

In 2012, Human tissue on December 5, 2012 at 7:59 am

Our most recent HEAL event was a fascinating seminar with John Coggon speaking on Elective Ventilation for Organ Donation: Law, Policy, and Public Ethics. His paper drew on an article accepted by the Journal of Medical Ethics (forthcoming); abstract kindly provided below.

 

Abstract This paper examines questions concerning elective ventilation, contextualised within English law and policy. It presents the general debate with reference both to the Exeter Protocol on elective ventilation, and the considerable developments in legal principle since the time that that protocol was declared to be unlawful. I distinguish different aspects of what might be labelled elective ventilation policies under the following four headings: ‘basic elective ventilation’; ‘epistemically complex elective ventilation’; ‘practically complex elective ventilation’; and ‘epistemically and practically complex elective ventilation’. I give a legal analysis of each. In concluding remarks on their potential practical viability, I emphasise the importance not just of ascertaining the legal and ethical acceptability of these and other forms of elective ventilation, but also of assessing their professional and political acceptability. This importance relates both to the successful implementation of the individual practices, and to guarding against possible harmful effects in the wider efforts to increase the rates of posthumous organ donation.

Today’s HEAL meeting: John Coggon

In 2012, Meetings on November 22, 2012 at 10:36 am

Today at 3pm, Thursday 22 November, John Coggon will see speaking on ‘Elective Ventilation for Organ Donation’, in room 2055/4(Law). All welcome.

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.