Pioneering Healthcare Law

Essays in Honour of Margaret Brazier

Catherine Stanton, Sarah Devaney, Anne-Maree Farrell, Alexandra Mullock, Catherine Stanton, Sarah Devaney, Anne-Maree Farrell, Alexandra Mullock

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317505990
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho médico

This book celebrates Professor Margaret Brazier's outstanding contribution to the field of healthcare law and bioethics. It examines key aspects developed in Professor Brazier's agenda-setting body of work, with contributions being provided by leading experts in the field from the UK, Australia, the US and continental Europe. They examine a range of current and future challenges for healthcare law and bioethics, representing state-of-the-art scholarship in the field.

The book is organised into five parts. Part I discusses key principles and themes in healthcare law and bioethics. Part II examines the dynamics of the patient–doctor relationship, in particular the role of patients. Part III explores legal and ethical issues relating to the human body. Part IV discusses the regulation of reproduction, and Part V examines the relationship between the criminal law and the healthcare process.

Chapter 10 of this book is freely available as a downloadable Open Access PDF at http://www.taylorfrancis.com under a Creative Commons Attribution-Non Commercial-No Derivatives (CC-BY-NC-ND) 3.0 license.

1 Pioneering healthcare law

Anne-Maree Farrell, Catherine Stanton, Alexandra Mullock and Sarah Devaney

Introduction

This collection of essays examines a range of current and future challenges for healthcare law, representing state-of-the-art scholarship in the field. It draws inspiration from the pioneering and highly influential work of one of the outstanding leaders in the field, Margaret Brazier. Brazier has led the way not only in terms of her intellectual rigour but also in her commitment to critically examining how law works (or does not work) in healthcare practice. This is evidenced in the diversity and qualitative depth of her scholarship, as well as in her extensive contributions to public policy and law reform. In this chapter, we explore the evolution and development of healthcare law, identifying Brazier’s distinctive contribution to the field. We then provide an overview of the structure of the collection, which has been organised around five key areas in Brazier’s scholarship, before offering some brief concluding comments.

The evolution and development of healthcare law

The study of law and its relationship to medicine was the central focus of early scholarship in the emerging field of what would become known as medical law in the 1980s. It drew predominantly on tort law, contract law and the criminal law which touched on, or otherwise sought to interpret, this relationship. Most of the interesting early cases in medical law emanated from North America, with English jurisprudence lagging far behind.¹ This began to change with a number of important cases decided by appellate courts. This included the well-known case of Sidaway where the House of Lords engaged in substantive analysis of the law of consent in medical treatment for the first time.² This landmark decision was subsequently critiqued in a seminal paper by Brazier, marking her place as a leading and influential thinker in this new field of legal study.³

Much of the focus in medical law has been on examining the issues of autonomy and self-determination as encapsulated in the law of consent and further developed in line with human rights jurisprudence.⁴ It has involved philosophical and conceptual analysis, together with the application of rights-based principles,⁵ to inform a legal framework for regulating the relationship between doctors and patients.⁶ Notwithstanding scholarly engagement with ‘de-medicalisation’ arguments,⁷ the relationship between law and medicine, in particular doctor–patient relations, has been and will continue to be a core aspect of study in the field underpinned by engagement with (philosophical) bioethical critique.⁸

However, it is possible to discern a number of conceptual and analytical shifts within the field over time to encompass a broader examination of the role of law in health and medicine at both national and supranational levels. First, there were calls for a greater focus on the law governing the design and delivery of healthcare, rather than just the relationship between law and medicine.⁹ Second, human rights principles became more explicitly part of scholarly thinking and analysis following the adoption of the Human Rights Act 1998 and subsequent jurisprudence.¹⁰ Third, the contribution of private law has clearly diminished over time. This has taken place as a result of the upsurge in public law, regulation and governance which intersects in increasingly diverse ways with health systems, services, technologies and delivery.¹¹ In this regard, the influence of European Union law on Member States’ health systems has grown exponentially in recent years.¹² Fourth, there is growing scholarly interest in examining ethical, legal and social issues affecting health at the population level, both nationally and globally.¹³ Finally, there has been a greater preparedness by scholars working in the field to incorporate theoretical insights and methodological approaches from a range of other disciplines, including feminist studies, sociology, regulatory studies and the behavioural sciences.¹⁴

While arguments have been put forward over time regarding the use of terminology to describe the field,¹⁵ as well as its appropriate ‘jurisdiction’,¹⁶ we would argue that the days of debating whether it should be recognised as a discrete sub-discipline within the legal academy are now over. In the 21st century, the study of law and regulatory governance involving health, (bio)medicine and related technologies is clearly thriving, producing rigorous and innovative scholarship together with engagement in policy debates and law reform. This has been in no small measure due to the outstanding scholarship and leadership shown by Brazier.

Brazier: Academic scholarship and contribution to healthcare law

In the context of her scholarship, Brazier’s pioneering and distinctive contribution lies firmly within the field of healthcare law. We use this descriptor advisedly here: much of her work has focused on examining ethical, legal and social issues in healthcare, particularly as they involve and impact upon patients and their families. In adopting this focus, recurring themes in her scholarship in this area have included how we should conceptualise autonomy and responsibility.¹⁷ In doing so, Brazier demonstrates the multi-disciplinary approach evident in other areas of her work, drawing on the work of ethicists and philosophers.¹⁸ For Brazier, autonomy is not an opportunity for individuals to seek to satisfy their preferences without concern for others. Exercising autonomy and being responsible for the choices we make involves consideration of how our choices will impact on others.¹⁹ Thus, although Brazier is known for her championing of enhanced patient autonomy, she recognises that this comes with responsibility in terms of a partnership in healthcare decision-making with doctors and other healthcare professionals. Although optimistically committed to realising the ideal of the ‘therapeutic alliance’,²⁰ she maintains a healthy scepticism, as well as a keen critical eye, as to how abstract ethical principles and pronouncements from medico-legal elites may clash with the day-to-day reality of the clinic.

While understanding of the difficulties and pressures that doctors face in the professional cultures and institutional environments in which they work,²¹ she nevertheless places the ‘humanity’ of key actors in healthcare (in particular patients and their families) at the forefront of her analysis of legal and ethical conundrums in clinical practice. ‘Humanity’ is a recurring theme in and across key areas of Brazier’s research. It is employed as a useful heuristic device for both conceptual analysis²² and what has been described as her unique methodological approach.²³ In the former case, the term seeks to capture the complexity and interconnected nature of relationships in healthcare settings and how they play out in decision-making, treatment and outcomes. While not exhaustive, it includes human vulnerabilities, foibles and preferences, as well as providing the basis for claims about the importance of partnership, respect and dignity in healthcare settings.

In the latter case, Montgomery neatly sums up the ‘key characteristics’ of Brazier’s methodological approach, drawing upon one of her seminal papers on informed consent and the law:²⁴

A concern with the role of law in facilitating effective healthcare, as well as protecting patients’ rights; an interest in the reliability of the assumptions made about the reality of clinical practice [so as to ensure that policy draws on a firm evidence base]; a healthy cynicism about the consequences of legal interventions; an awareness of the need to develop tailored responses [that fully address the problem at hand, rather than just relying on ‘hard’ law].²⁵

Brazier’s approach is in contrast to other leading scholars in the field who could be said to have focused on a more ‘top-down’ approach to principles-based development, which is abstracted from the day-to-day reality of the clinic and the lives of patients and their families.²⁶ Instead, Brazier employs this distinctive approach to confront some of the more difficult ethical and legal dilemmas that arise in the clinic. While revealing an empathetic understanding of the humanity of key actors, this is never done at the expense of intellectual rigour in tackling what Biggs et al. have described as the ‘hard questions: questions that challenge her own views and moral position’.²⁷ Brazier has never been intellectually shy in rising to such a challenge, nor in asking her fellow scholars to do likewise.²⁸

Brazier: Public service engagement and leadership

Healthcare law often deals with issues affecting life and death (and much in-between) that are strongly contested and directly engage with the public and political spheres. Indeed, we would suggest that one of the more rewarding aspects of working in this field is that it offers both challenges and opportunities to contribute to, or otherwise have an impact upon, policy-making and law reform in relation to such issues. However, we suggest it requires a certain disposition and approach to be successful in such engagement. In academia, we are encouraged to engage in ‘I think’: putting forward our own arguments on particular issues, as well as unpacking and critiquing those of others. We develop high-level conceptual and analytical skills in so doing, underpinned by experience and expertise in our respective fields. If we choose public engagement, then a different paradigm for analysis and decision-making presents itself. Academics must participate more in ‘group think’: this may involve conflict, catharsis, collaboration and (hopefully) consensus. Brazier is that relatively rare phenomenon in academia: not only is she an outstanding scholar who has made a pioneering contribution to her field, but she has also made an equally outstanding contribution as a public intellectual and leader in policy debate and law reform.

In terms of the skill set required for this latter work, what can we glean from Brazier’s leading roles in bodies examining surrogacy,²⁹ human tissue/organs retention³⁰ and neonatal medicine?³¹ First, you must have an in-depth understanding of the law but you must also understand its limitations and retain a healthy scepticism regarding its interpretation and application in practice. Second, you must have an appreciation of the diverse ways in which law can be used as a mechanism of social control; this may require a range of soft and hard legal options to be employed for the purposes of consensus building, effective reform and desired behaviour change. Third, you must incorporate values-based analysis that draws on a sound evidence ...