HEAL UoS

Posts Tagged ‘legitimacy’

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

Advertisements

Seminar of interest: ‘Using the owned home to fund social care’, 19 March 2014, Southampton

In 2014 on March 18, 2014 at 2:23 pm

Tomorrow, Dr Emma Laurie and Professor Nick Hopkins (formerly Soton, now at Reading), will be giving a Law School staff seminar on ‘Using the owned home to fund social care: assessing the legitimacy of the Care Bill through the social contract’ at 1pm in rm 2055, building 4, Highfield campus.

AbstractThe funding of adult social care is undergoing reform through the Care Bill with the overriding objective of achieving “fairness”; in particular by ensuring that the home does not have to be sold during the lifetime of the owner to fund the cost of care and to limit the extent to which wealth accumulated in the home is used for that purpose. Increasingly, the responsibility to fund certain aspects of welfare has shifted to the individual and is linked to releasing the financial value in the owner-occupied home. There is a growing body of literature concerned with this phenomenon of asset-based welfare. We assess the extent to which it is legitimate for the government to require owner-occupiers to draw on the equity in their home to fund social care. We locate this enquiry within the framework of social citizenship and, specifically, the new social contract. We identify that the Care Bill raises issues of concern for intergenerational justice and has the potential to imbalance the social contract. Nevertheless, the consistent way in which the ideology of home ownership has been promoted justifies treating the home more favourably than other assets – at least for the current generation. We argue, however, that incremental change would protect current legitimate expectations of home owners but would enable the intergenerational imbalance to be corrected over time.

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

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.

Life, Death & Law Making

In Death and dying, Testing project on September 22, 2011 at 2:04 pm

Now available on-line before the published issue: Jonathan Montgomery, ‘Guarding the gates of St. Peter: life, death and law-making’, Legal Studies journal.

Abstract   In 2009 the legislature, judges and Director of Public Prosecutions (DPP) each turned their attention to issues around assisted suicide. The legislature decided not to change the law. The judges decided the existing law was insufficiently clear and required the Director to clarify it. The Director flirted with reforming the law, but then drew back from such a legislative role. His published prosecution policy has been considered as a contribution to the regulation of death and dying, and as such has been found wanting. However, considered in the context of the proper roles of Parliament, courts and prosecutors, and seen as an exercise in constitutional restraint, the Director’s approach should be appraised rather differently. From this perspective, the decision of the Judicial Committee of the House of Lords in R (Purdy) v DPP1 raises significant concerns for the legitimacy of decision making in the contested moral issues that arise in healthcare ethics. In our democracy, courts should be wary of usurping legislative authority in areas where the Parliamentary position is clear. They should be reluctant to take sides in the protracted war over access to a ‘good death’.