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Posts Tagged ‘Jonathan Montgomery’

Bioethics as a Governance Practice

In 2015, Annual Lecture on May 15, 2015 at 3:33 pm

Jonathan Montgomery gave the inaugural lecture in the annual series of the Centre for Health Ethics and Law on 7 May 2015. Lecture organiser, Associate Professor A.M. Viens said, “We are extremely pleased to welcome Professor Montgomery back to Southampton to deliver the inaugural annual lecture for the Centre for Health, Ethics and Law. His contribution to the development of health care law, both academically and in his public service, is unrivalled in the UK. In recognition of these contributions, the annual lecture series will be named in his honour.”

Jonathan considered different ways of understanding bioethics; as a subject, a discipline, a field, an enterprise, and a governance practice. He suggested that the last was a neglected perspective that deserved greater consideration. He offered a brief history of bioethics governance in the UK, noting that it was a mixture of bodies charged with general oversight, bodies with responsibility for specific sectors, and ad hoc groups convened to look at single issues. He suggested that Bioethics Governance, envisaged by the UNESCO Universal Declaration on Bioethics (2005), had generally been understood as being developed in response either to fears that science was advancing faster than ethical reflection (as exemplified by the establishment of the Nuffield Council on Bioethics in 1991), or to scandal (as demonstrated by the governance of health research through statements of principle, ethics committees, and research governance frameworks). He argued that it was also important to see Bioethics Governance as a response to pluralism (when society is not in agreement about bioethical issues but it is necessary to achieve some degree of closure, at least temporarily, to take regulatory decisions). However, if the idea of Bioethics Governance was to be distinguished from more general political decision-making, he suggested it was additionally necessary to see it as a response to claims of relativism (that there was no basis for distinguishing between views). Bioethics Governance denied that this should determine decisions, looking for some form of public reason or deliberative processes to provide legitimacy for regulatory decisions. A satisfactory account of Bioethics Governance would need to recognise the contingency of the circumstances in which questions arose, explain the legitimacy of the exercise of power that it involved, and show that regulatory responses were effective, efficient and proportionate. In conclusion, bioethics could properly be considered in each of the ways outlined, but characterising it as a governance practice brought issues that needed further examination into the spotlight.

His slides can be seen here:
Bioethics as a Governance Practice

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Announcing the inaugural HEAL annual lecture: Prof. Jonathan Montgomery, ‘Bioethics as a Governance Practice’, 7 May

In 2015, Meetings on April 20, 2015 at 9:00 am

We are delighted to announce that Prof. Jonathan Montgomery (Faculty of Laws, UCL) will give the inaugural Centre for Health, Ethics and Law (HEAL) Annual Lecture. This event will be held on Thursday 7 May at 6pm in Lecture Theatre A (Nuffield Theatre, building 6), and is generously sponsored by Health Care Analysis

Jonathan will be speaking on ‘Bioethics as a Governance Practice’. 

ABSTRACT The nature and scope of bioethics has been long debated. Some see it as a descriptor of a field of study; covering topics such as research ethics, death and dying, genetics, reproductive technologies and behavioural control. Others suggest it is an academic discipline, perhaps with its roots in moral philosophy. Others still suggest that it is an academic enterprise bringing to bear a constellation of disciplines to make sense of issues in the field. The public and policy facing aspects of this work have given rise to considerable controversy over the nature and legitimacy of bioethical expertise, giving rise to ‘culture wars’ in the USA. This lecture examines the nature of bioethics as a governance practice. It explores the range of mechanisms that have been adopted for regulation, oversight and mediation of public concerns and discusses some of the implications of this movement of bioethics from academic and clinical contexts into institutions in the public square.

See further the event poster: HEAL Annual Lecture 2015.

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

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

This week’s HEAL event: Jonathan Montgomery on ‘What is Medical Law “For”?’

In 2013, Key Legal Concepts, Meetings on October 28, 2013 at 7:00 am

Jonathan‘s swansong before he moves to pastures new, namely the Faculty of Laws at UCL, is a HEAL seminar where he will speak on ‘What is Medical Law “For”?’

Abstract  Should Health Care Law seek to resolve issues of bioethics or merely regulate the ways in which they are addressed? Does it matter that conflicting ethical advice can be said to leave patients’ rights unprotected (Miola, J., ‘Medical law and medical ethics – complementary or corrosive?’ (2004) 6 Medical Law International 251-274)? Is Health Care Law doomed to develop into a value-neutral subset of consumer law (Brazier, M. and Glover, N., ‘Does Medical Law have a Future’ in Hayton, D. (ed) Law’s Futures, (Oxford, Hart Publishing, 2000) 371-388)? This paper considers whether it is acceptable for health care lawyers to accept that there may be ‘no right answer’, or whether any theory of Health Care Law that accommodates indeterminacy represents a betrayal of the rule of law. It develops arguments explored in Montgomery, J., ‘The Legitimacy of Medical Law’ In McLean, S. (ed) First do no harm: Law, ethics and healthcare (Aldershot: Ashgate, 2006), 1-16, and Montgomery, J. ‘Law and the demoralisation of medicine’ (2006) 26 Legal Studies 185-210, in order to address some of the challenges identified in those papers. It considers whether an analogy with judicial adjudication might be instructive. 

This event will run from 4-6pm in 2007/4 (Highfield). If you would like to attend please confirm by email to A.M.Viens@soton.ac.uk, thank you.

Forthcoming HEAL events

In 2013, Meetings on September 30, 2013 at 11:50 am

Just a brief post today with two dates for your diaries:

1.  We will be discussing the Nuffield Council on Bioethics’ consultation on Children and Research, accessible here, on Wednesday 9 October, from 3.15pm until 5.15pm in room 2055/4, Highfield campus.

2. Jonathan Montgomery  will be speaking on ‘What is Medical Law “For”?’, from 4-6pm on Wednesday 30 October in 2007/4, Highfield campus. Sadly Jonathan is leaving us Southampton to move to the Faculty of Laws at UCL this autumn, so this is his last seminar as a fully-fledged HEAL member (but he will, of course, retain strong links to HEAL and the School, not least through our ongoing Hidden Lawmakers programme).

 

Caroline Jones

Event: Caring for Patients not Systems: Reflections on the Mid-Stafford Inquiry

In 2013, Meetings on February 25, 2013 at 8:30 am

The Centre for Law, Ethics and Globalisation (CLEG) at Southampton Law School and Hickman and Rose Solicitors in collaboration with the Centre for Health Ethics and Law (HEAL) invite you to their first joint annual event: a discussion and Q&A with Robert Francis QC, in discussion with Prof. Jonathan Montgomery.

We are proud to host Robert Francis QC, the chairman of the Mid-Stafford Inquiry, for an evening concerning the legal aspects of his Report and in conversation with Jonathan Montgomery, Professor of Health Care Law of Southampton Law School. The Inquiry Report, published on 6 February, raises fundamental questions about the culture of the NHS, professional and managerial values and how to ensure that caring for patients is the first and paramount concern of health services. It provides an opportunity to reconsider the values of humanity and dignity and how to promote them. There will be a question and answer session with the audience. The Report can be found at http://www.midstaffspublicinquiry.com/report.

The discussion will be chaired by Daniel Machover, Partner, Head of Civil Litigation, Hickman and Rose and hosted by Professor Adam Wheeler, Provost, Southampton University. Further details can be found here, and to book a place email Jo Hazell at J.L.Hazell@soton.ac.uk. Bookings will close on 25 February 2013.

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.

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.