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Posts Tagged ‘medical treatment’

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.

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Case of the week: October 17, 1985

In Case of the week, Reproduction, Testing project on October 19, 2011 at 6:16 am

Throughout the 1980s, Victoria Gillick, a pro-life campaigner, undertook a legal battle. Her initial action was sparked by the 1980 DHSS circular (an update of the 1974 DHSS circular), which allowed doctors to provide contraceptive advice and treatment to under-16 year old girls – they were entitled to doctor-patient confidentiality and in need of protection from risks such as pregnancy and STDs. Victoria Gillick contacted her local Area Health Authority seeking assurance that none of her five daughters would be provided the contraceptive pill without parental consent. When this was not forthcoming she took legal action to challenge the provisions of the circular.

At first instance, she sought a declaration that the guidance was unlawful and adversely affected parental rights and duties. Her initial failure in the lower court was followed by success in the Court of Appeal where the Lord Justices unanimously agreed that the guidance in the circular was unlawful; hence doctors should not be able to give contraceptive advice and treatment to under-16 year olds without parental consent, except in cases of emergency.

The DHSS appealed to the House of Lords where they succeeded with a 3:2 majority. Lords Fraser, Scarman and Bridge accepted that if an under-16 year old was competent enough to understand the issues involved and the doctor believed it was in her best interests, then it was lawful for a doctor to provide contraceptive advice and treatment without parental consent. Lord Fraser’s guidelines gave rise to the ‘Gillick competence’ test, often referred to as ‘Fraser competence’, which is now widely used to assess issues of competence of under-16 year old children (including with regard medical treatment).  Gillick was the first legal recognition of the rights of under-16 year olds to give effective consent and remains the leading case in this area. The Gillick principles were reaffirmed in 2006 in Axon, R (on the application of) v Secretary of State for Health [2006] EWHC 37; see also coverage by the BBC.

This is a guest post by Emma Nottingham of the Law School, University of Southampton.

This week’s meeting!

In 2011, Capacity, Meetings, Mental Health on September 26, 2011 at 8:45 am

On Wednesday 28 September, we’re meeting at 4pm in room 2007/4 (Law, Highfield) to discuss the ‘Adults With Incapacity (Scotland) Act 2000 – Consultation On Certification Of Incapacity For Medical Treatment, with a view to formulating and submitting a response on behalf of HEAL.

This consultation seeks views on four issues on Adults with Incapacity (Scotland) Act 2000 Part 5 in relation to medical treatment. The issues are:  1.widening the range of institutions which can offer training; 2.whether dentists should be required to undertake training for this purpose; 3.whether multiple section 47 medical treatment certificates should be required in some circumstances; 4.and whether other medical practitioners not specified should be enabled to certify incapacity for medical treatment.