HEAL UoS

Posts Tagged ‘NHS’

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

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.

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.

NHS Rationing: Introducing a new blog

In 2012, NHS on October 8, 2012 at 6:45 am

No, not a new blog by us, but a site devised & maintained by David Lock QC, a barrister at No 5 Chambers, who specialises in Health Care Law. David’s aim is to ‘seek to explain the reality of NHS Rationing and Post Code Prescribing within the NHS’. Just to be clear, the site is ‘independent of the NHS or any firm of solicitors’.

Initial posts include a guide to Individual Funding Requests, possible legal issues raised by post-code variations in the provision of IVF:  ‘IVF postcode lottery’ and of course David’s welcome post. There is a section dedicated to relevant case studies,  on how to challenge treatment decisions, and how to get the best use of the site.

We wish David the very best on his entry into the blogosphere!

Clinical Negligence and the NHS

In 2011, NHS on November 15, 2011 at 1:45 pm

In June 2011 the Health Select Committee published a report on Complaints and Litigation in the NHS. It supported the continuation of fault-based compensation, concluding that that ‘the existing clinical negligence framework based on qualifying liability in tort offers patients the best opportunity possible for establishing the facts of their case, apportioning responsibility for errors, and being appropriately compensated’ (Para 157). However, it was very critical of claims management firms, which it thought pushed people into litigation rather than using complaints procedures and unduly contributed to the rising costs of clinical negligence (Para 172). The Government’s response to the report indicates that the Ministry of Justice is working closely with the NHS Litigation Authority (NHSLA) and the Association of Personal Injury Lawyers (APIL) to agree a scheme that will enable a speedier resolution of lower value clinical negligence cases and aims to reduce costs (Para 147). It also notes that the Jackson reforms of civil litigation, being implemented through the Legal Aid, Sentencing and Punishment of Offenders Bill, will have a significant effect in this area (Para 19). The Ministry of Justice is now consulting on the regulation of claims management firms.

The two volumes of evidence to the Select Committee contain a considerable amount of information on concerns about this area of law and practice. The previous parliamentary report by the Constitutional Affairs Select Committee on the (non)existence of a compensation culture is also relevant. The publication of the industry review of the NHSLA is still awaited, as is the implementation of the NHS Redress Act 2006 despite the initial policy announcements from the Department of Health. It does seem clear from the Annual Report of the NHSLA for 2011 that there is a significant increase in both the number of clinical negligence claims received by the NHS and also the money paid out in compensation and legal expenses.

Looking back 10 years: NHS reform!

In 2001, NHS on September 5, 2011 at 8:35 am

Originally announced in July 2001 (foreword by Nigel Crisp), in the Shifting the Balance of Power Within the NHS: Securing Delivery paper, the Department of Health’s NHS Plan was ‘about improvements for patients and the public’, by – among other things – developing the Primary Care Trusts (PCTs), the creation of  ‘fewer, larger and more strategic health authorities’ and ‘re-focusing the Dept. of Health ‘on doing only those things that only it can do.’

Come September 2001 the Dept. of Health issued consultation documents on ‘Modernising the NHS’ through restructuring, including our ‘local’ consultation on Modernising the NHS: Shifting the Balance of Power in the South East, on the proposals for a new Health Authority for Hampshire and the Isle of Wight.

 

NB in the interests of transparency, we should probably declare at this juncture that Jonathan Montgomery is the current Chair of Hampshire Primary Care Trust.

Welcome to the HEAL UoS blog!

In Welcome on September 1, 2011 at 3:00 am

As it says in the ‘About‘ section, HEAL UoS ~ the Health Ethics and Law research group at the University of Southampton ~ was established in 2005 through the efforts of Prof. Jonathan Montgomery and Dr. Caroline Jones. We were delighted to have Prof. Hazel Biggs join us in 2009. Together the three of us run the network, arranging lunchtime seminars on topical subjects & occasional workshops, and liaising with colleagues and peers to discuss and coordinate responses to public consultations in the field of Health Care Ethics and Law, broadly conceived. We try to both foster and further develop collaborative relationships across the University and local NHS community.

This blog …

Our aim is to update this blog at least once weekly with posts under the historical ‘case of the week’ section (going on the dates of judgments – so we can’t promise a case every week!), policy developments and ‘in the news’ stories, both current and historical, and ‘events’ to keep you up-to-date with HEAL UoS’s activities. You can also follow us on Twitter:  @HEALUoS

nb. This blog does not contain legal advice, nor does it seek to provide such guidance – if you need legal advice and assistance please contact a qualified solicitor, and/or your union (if relevant) or local CAB office.