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Posts Tagged ‘medical law’

Honouring the Contributions of a Founder of Medical Law

In 2015, Conferences, Uncategorized on December 14, 2015 at 9:29 am

Prof. John Coggon

On Friday 4th December, Hazel Biggs, David Gurnham, and I attended a meeting arranged at the University of Manchester to honour the contribution that Margot Brazier has made to the field of Medical Law. It is hard to describe in full enough terms the impact that Margot has had on legal scholarship, understanding, and practice. And even if we limit ourselves to the major area of study that she has pioneered—medical law—it is hard to capture quite how much she has given.

Margot is the quintessential scholar. She excels in her research, as a teacher, and as a figure engaged in significant questions of public ethics and policy. Just consider the research interests of each of HEAL’s core members in the Law School—Hazel Biggs, John Coggon, David Gurnham, Caroline Jones, Natasha Hammond-Browning, Claire Lougarre, Remigius Nwabueze, and A.M. Viens. Not one of us works in a field to which Margot has not offered significant insights and understanding. To repeat a term already used, she is a true pioneer: as was recognised both on the day, and in a festschrift that has been published in her honour.

The conference was a fantastic tribute to Margot’s great work. Hazel was amongst those speaking, but all who attended were able to attest to how much we owe Margot. Lady Hale’s foreword to the festschrift, which was the basis of her speech at the conference, provides in duly flattering terms the essence of what it is that has led to Margot inspiring, encouraging, supporting, mentoring, and advising so many of us in the field. She is a fantastic scholar, whose work—and approach to life—is founded on an uncompromising and deep-seated humanity.

As a whole research centre, we at HEAL are delighted to report our participation in this landmark event, and to thank Margot more than wholeheartedly for having helped define this field of study: I am sure it is fair to say that at least I, if not others in the Centre, would not be here without Margot.

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

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.

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.

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.

Case of the week: September 22, 2000

In Case of the week, Cases 2000, Death and dying on September 19, 2011 at 8:46 am

Re A (Children) EWCA Civ, Sept 22, 2000.  

The twins, named Jodie and Mary in the reports in order to preserve their anonymity, were born on August 8, 2000 in Manchester, after their parents travelled to the UK from Gozo, Malta (as it was known they were expecting conjoined twins and local resources were limited). They were joined at the lower abdomen/pelvis and – crucially – shared an aorta. Whilst Jodie was reported to have an ‘anatomically normal brain, heart, lungs and liver’, showing normal reactions to stimuli etc [para 6, CA transcript, below], Mary was reported to have a ‘primitive brain’, poorly functioning heart, and an absence of ‘functioning lung tissue’ [at 7], and was therefore dependent on Jodie for survival. The surgical team and hospital were in favour of surgical separation in order to maximise the chances of Jodie’s survival; the pressure placed on her heart in supporting both her and Mary was, according to expert evidence, highly likely to lead to the premature deaths of both children, whereas separation might enable Jodie to survive, albeit it that it would concurrently lead to Mary’s immediate death.

The parents disagreed, noting the influence of their devout religious faith (Roman Catholic) that it should be ‘God’s will’ to decide whether or not either or both of the children should survive. The hospital sought, and was granted, a declaration that the operation might go ahead – it was granted by Johnson J on 25 August 2000. The parents’ appeal was, a month later, dismissed by a unanimous Court of Appeal panel, comprised of Ward LJ, Brooke LJ and Robert Walker LJ. Unsurprisingly this case raised a plethora of legal and ethical/moral dilemmas for the court including – but not exhaustively – the role of parents in decision-making; questions over comparative ‘quality of life’ issues; welfare/best interests; murder, intention & the doctrine of necessity (in defence); role of religion; relevant aspects and intersections of Family Law and Criminal Law; & the sanctity of life (including some comments on the (then) forthcoming Human Rights Act 1998. However, the unanimity of the agreed outcome masks the divergent routes by which the individual judges arrived at their decisions.

For those who wish to read further, the case transcript is freely available to all via  BAILII:  http://www.bailii.org/ew/cases/EWCA/Civ/2000/254.html. Permission to appeal to the House of Lords was granted, but the parents chose not to appeal – nor was a direct application to Strasbourg (ie an alternative route to challenge the decision) undertaken.

Links

Coverage of the CA decision: http://news.bbc.co.uk/1/hi/health/937586.stm  

http://www.guardian.co.uk/uk/2000/sep/28/4?INTCMP=ILCNETTXT3487

Coverage of reactions to the decision: http://news.bbc.co.uk/1/hi/health/937377.stm

This decision is also reported at [2001] Fam 147, [2000] 4 All ER 961, [2001] 2 WLR 480, [2000] 3 FCR 577, [2001] 1 FLR 1, [2001] Fam Law 18, 57 BMLR 1; but access to these resources may be restricted (subscription required).