Issues in Medical Law and Ethics

Derek Morgan

• Publisher: Routledge-Cavendish
• Year: 2012
• Print ISBN:
  9781859415917
• eBook ISBN:
  9781135340988
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Thirty years ago, English jurist Patrick Devlin wrote: "Is it not a pleasant tribute to the medical profession that by and large it has been able to manage its relations with its patients ... without the aid of lawyers and law makers".

Medical interventions at the beginnings and the endings of life have rendered that assessment dated if not defeated.

This book picks up some of the most important of those developments and reflects on the legal and social consequences of this metamorphosis over the past ten years, and will be of interest to students of law, sociology and ethics who want a considered and critical introduction to, and reflection on, key issues in these pivotal moments of human life.

PART I

MEDICAL LAW, TRAGIC CHOICES AND THE RISK SOCIETY

CHAPTER 1

WHAT IS MEDICAL LAW?

I have, for the past 10 years, been perhaps more interested in ethical or philosophical aspects of health care and medical practice than in legal ones. My colleagues and students will tell you that this constantly shows; philosophers and ethicists will say that it does not. I have, in that time, been interested in thinking about what we might call ‘uses of the body’, particularly in its reproductive and affective aspects, but also more generally. The body is now recognised as an immensely complex index of social attitudes and ambivalence, cultural expressions and expectations, public representations and regulation.¹ There have been changes in or challenges to what we might call ‘knowledge of the body’ and the ‘body of knowledge’. Much of what I want to do in this collection involves reflecting on these changes. But I have some preliminary questions that I want to address.

MEDICAL LAW: UNPLUGGED

The question ‘what is medical law?’ is sometimes posed in a form that appears to assert that ‘medical law is not a subject’. I agree in part. Medical law is indeed not just a subject; it is also a responsibility. Whether medical law is a legal category in itself is beside the point.² The framing of responses properly lying within medical law is part of an intellectual responsibility that lies at the heart of the academic obligation which, as John Fleming has otherwise observed, is to be ‘sensitive to movement and direction…[being] concerned with whence, whither and most important, with why’.³ To argue that there is no such subject as medical law, that it is no more than an amalgam of traditional categories of tort, contract and criminal law, also misses a number of points. It misses the dynamic as well as the context of medical law, in addition to failing properly to describe the very subject. Medical law, if it is an amalgam, encompasses in addition to contract, tort and criminal law, at least administrative law, procedural law, trusts, conflicts of law, labour law, and, it is now becoming clearer, aspects of personal and intellectual property law too.

Secondly, to describe medical law as nothing more than an amalgam of legal categories shaved away by Salmond, Chitty and Anson from the body of case and assumpsit, fails to appreciate the necessarily interdisciplinary approach which the subject properly demands and which most of its university teachers and students trade in. In the same way that Raanon Gillon has observed that ‘philosophy on its own is not sufficient to understand critically health care provision’,⁴ neither is law itself sufficient for an understanding and appreciation of either health care or health care law, whether critical or not.

Thirdly, the dynamic is illustrated by the way in which issues involving aspects of medicine and doctors have impacted upon and, to some extent, transformed those ‘traditional’ areas:Gillick,⁵ Bland⁶ and Re A (Children: Conjoined Twins)⁷ upon criminal law; the declaratory jurisdiction of the High Court, revived and enlivened by Re F, ⁸ Re B,⁹ Bland,¹⁰ and Re S;¹¹ and in R v Cambridgeshire HA ex p B¹² (at least at first instance) the court has addressed both the proportionality test and at last raised doubts about the continued vitality of the Wednesbury¹³ concept of reasonableness in the modern State, and has broached the jurisprudence of the European Convention on Human Rights in English law.

The context is illustrated by the failure of the traditional approach to recognise either the scope or the terrain of medical law or its intellectual parameters. Medical law is in large part a process of naming, blaming, claiming and declaiming. Each of these questions has important ethical and philosophical dimensions. Naming—is this person ill, unwell, chronic, acute etc; blaming—exploring the role of caring for oneself and one's responsibilities for health care, particularly whether we are responsible for our own health, but also the State's responsibility for provision of health care and our collective responsibility for other nations’ health;¹⁴ claiming—what are our entitlements to health care, of access to services?; and declaiming—about saying who we are and who we want to become, giving a moral and symbolic emphasis to law.¹⁵ This concerns our efforts to define and delineate the sort of society that we say we are and that we want to become; whether we want to sterilise women with intellectual difference, permit surrogacy arrangements, sanction the recovery of sperm from neo-morts for use by their widows or former partners, permit patients to exercise rights of quasi-ownership over their medical records, assert claims to assistance in or with dying, control their fertility by termination of pregnancy without the intervention of the criminal law, determine the sex of the children to which they will give birth, and so on. Each of these questions has important philosophical, ethical, sociological and political dimensions, as well as legal ones, and I explore some, but not necessarily all, of them in this collection.

Martyn Evans has argued that the practice of medicine is driven by a range of human values (the relief of suffering prominent among them).¹⁶ This recognition, he argues, should replace an exclusive focus on ethics (hitherto highly dominant in normative analyses of medicine) because the range of human values is more than ethics alone: medicine presupposes moral, aesthetic, socio-political, intellectual and epistemic values which together construct what medicine is, what it does and what it aims at. Ethics refers to the first and most obvious category of values, but in time it might come to be seen as merely a special case of a more general concern. Individuals’ illnesses are a fusion of biological processes and biographical experiences; this is true to some extent of all illnesses, but is especially true of chronic illnesses.¹⁷ The treatment of chronic illnesses in particular requires a fusion of biological and biographical understanding. Illnesses are ‘episodes in a narrative from conception to corruption’;¹⁸ the provision of medical care is a response to narrative episodes, and of course constitutes further such episodes.

When we come to speak of health and illness, then, we are of necessity required to address at least a package of conceptual questions;¹⁹ pol...

Table of contents

• Front Cover
• Half Title
• Title Page
• Copyright
• Contents
• Preface
• Acknowledgments
• Table of Cases
• Table of Legislation
• PART I MEDICAL LAW, TRAGIC CHOICES AND THE RISK SOCIETY
• PART II SOME LANGUAGE QUESTIONS
• PART III INTROS: ENTRANCES AND ARRIVALS
• PART IV ATTEMPTS AND FAILURES IN MEDICAL LAW: THE CASE OF GENETICS AND RISK SOCIETY
• PART V OUTROS: EXITS AND DEPARTURES
• BIBLIOGRAPHY
• Index