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Law and the demoralisation of medicine

Published online by Cambridge University Press:  02 January 2018

Jonathan Montgomery
Jonathan Montgomery*
Affiliation:
School of Law, University of Southampton
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Abstract

In his Dimbleby Lecture in December 2002, the Archbishop of Canterbury examined the effect of the emergence of the market state on the legitimacy of government activity in areas of morality. He suggested that, while this is becoming limited, the continuing need to provide a moral context for social life provided an opportunity for religious communities to play a crucial role. This paper suggests that the increasing significance of market concepts in healthcare law poses a similar challenge to the moral basis of medical practice, threatening to drive moral argument outside the scope of the discipline, with the consequent effect of undermining the values that drive good healthcare. Thus, the de-moralisation of medicine is also demoralising for those within the health professions. To counteract this tendency, a strong sense of a common moral community needs to be maintained amongst those engaged with the discipline of healthcare law. This paper also examines the role of law in this area. Traditionally, legal scholars have attacked the reluctance of legislators and the judiciary to wrestle from the grip of doctors the authority to determine ethical issues. The dominant view has been that this was a failure to recognise the fact that society has a stake in these matters and that legal non-intervention was an abdication of responsibility that undermines the rule of law. However, the integration of medical and moral decision making into a collaborative enterprise can also be seen as a more effective defence against the forces of demoralisation than the separation that the orthodox approach implies. If this is correct, then a key task for healthcare lawyers, as yet undeveloped, is to consider how to establish a legitimate common moral community, and what role the law might have to play in that process.

Type
Research Article
Information
Legal Studies , Volume 26 , Issue 2 , June 2006 , pp. 185 - 210
Copyright
Copyright © Society of Legal Scholars 2006

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References

1. The text of the speech can be downloaded from the website available at http://www.archbishopofcanterbury.org.

2. Bobbitt, P The Shield of Achilles (London: Penguin, 2002)Google Scholar.

3. See, eg, p 230 for his analysis of the current position and pp 735–736 for a vision of the future.

4. Williams, R Lost Icons (London: T & T Clark, 2000)Google Scholar especially ch 1.

5. I raised concerns of a similar nature about the emergence of a rights model in ‘Patients first: the role of rights’ in Fulford, K, Ersser, S and Hope, T (eds) Essential Practice in Patient-Centred Care (Oxford: Blackwell Science, 1996)Google Scholar.

6. Department of Health The NHS Improvement Plan: Putting People at the Heart of Public Services (London: Department of Health, 2004)Google Scholar; .

7. Although, strictly, the full doctrine of informed consent probably remains unrecognised in English law, it is dominant in the work of commentators. Even with the ambiguous reference to surgery without informed consent being ‘unlawful’ in Chester v Asfar [2004] UKHL 41, [2005] 1 AC 134 at para 14, it seems clear that this case, the most pro-informed-consent decision yet delivered, saw the relevant legal doctrine as negligence to enforce a ‘duty to warn’, rather than trespass, where the validity of consent is the key issue (see, eg, para 60).

8. See Alderson, P and Montgomery, J Health Care Choices: Making Decisions with Children (London: Institute for Public Policy Research, 1996) pp 18–20 Google Scholar for a discussion of the value of autonomy in the construction of healthcare law.

9. Consider, for example, JS Mill’s account of the importance of liberty in On Liberty (London: Dent, 1972).

10. See, eg, Kennedy, I The doctor–patient relationship’ in Byrne, P (ed) Rights and Wrongs in Medicine (Oxford: Oxford University Press, 1986) pp 7–21 Google Scholar, especially pp 12–15. Although see also the reference to autonomy and dignity as foundations in Chester v Asfar[2004] UKHL 41, [2005] 1 AC 134 per Lord Steyn at paras 18 and 24.

11. This, rather than ‘autonomy and dignity’, is the principal rationale given for the legal duty to warn patients of risks by the judges in Chester v Asfar [2004] UKHL 41, [2005] 1 AC 134; see Lord Bingham of Cornhill (para 5), Lord Steyn (para 14, although see also para 18 as noted in the previous footnote), Lord Hope of Craighead (para 86), Lord Walker of Gestingthorpe (para 92). Lord Hoffmann suggested that the purpose was to provide an opportunity to avoid or reduce risk, a rationale related to avoidance of harm rather than either autonomy or choice.

12. See Beauchamp, Tl and Childress, Jf Principles of Biomedical Ethics (New York: Oxford University Press, 5th edn, 2001) pp 77–79 Google ScholarPubMed for a discussion of the difference between institutional practices for gaining consent and the idea of informed consent as the exercise of autonomy.

13. Data Protection Act 1998, Sch 1, Part II, para 13; Sch 4, para 1; Eighth Data Protection Principle.

14. Quoted in Alderson and Montgomery, above n 8, p 45.

15. Re T (Adult: Refusal of Medical Treatment) (1992) 9 BMLR 46 at 61.

16. Kennedy, I and Stone, J Making public policy on medico-moral issues’ in Byrne, P (ed) Ethics and Law in Health Care Research (London: King’s Fund, 1990)Google Scholar; Alderson and Montgomery, above n 8, pp 38–39.

17. Morgan, D and Lee, R In the name of the father? Ex p Blood: Dealing with novelty and anomaly’ (1997) 60 MLR 840 CrossRefGoogle Scholar.

18. R Lee and D Morgan ‘Regulating risk society; stigmata cases, scientific citizenship and biomedical diplomacy’ [2001] Sydney Law Review 297.

19. Airedale NHS Trust v Bland [1993] 1 All ER 821, R v Human Fertilisation and Embryology Authority, ex p Blood [1997] 2 All ER 687, Re A [2000] 3 FCR 577.

20. The metaphor is drawn from the phenomenon sometimes reported in the Christian religious tradition where the wounds received by Christ on the cross appear on the bodies of believers, seen as the external manifestation of an ecstatic religious experience.

21. There are some parallels here with the account of Mary Ann Glendon’s book Abortion and Divorce in Western Law (Cambridge, MA: Harvard University Press, 1987)Google Scholar in which the theories of the anthropologist Clifford Geertz are used to show how laws can be seen as a way in which societies project their values.

22. Lee and Morgan, above n 18, at 298 fn 6.

23. Gillick v West Norfolk Area Health Authority [1985] 3 All ER 402.

24. See Alderson and Montgomery, above n 8.

25. For a more detailed examination of the legal nature of her claims, see Montgomery, J Children as Property?’ (1988) 51 MLR 323 CrossRefGoogle Scholar.

26. Lee, R and Morgan, D Human Fertilisation and Embryology: Regulating the Reproductive Revolution (London: Blackstone Press, 2001)Google Scholar provides the best general study of the Human Embryology and Fertilisation Act 1990 and its operation. See also the report of the House of Commons Committee on Science and Technology Human Reproductive Technologies and the Law HC 7, 2004–2005.

27. Montgomery, J Rights, restraints and pragmatism’ (1991) 54 MLR 524 CrossRefGoogle Scholar.

28. R (Quintavelle (on behalf of ProLife Alliance)) v Secretary of State for Health [2003] UKHL 13, [2003] 2 All ER 113. See also R (Quintavelle) v Human Fertilisation and Embryology Authority [2002] EWCA Civ 667, [2003] 3 All ER 257 on the power to license tissue typing.

29. Raz, J The Authority of Law (Oxford: Oxford University Press, 1979)Google Scholar.

30. F v West Berkshire Health Authority [1989] 2 All ER 545.

31. These issues were debated in Parliament in consideration of the Human Tissue Act 2004.

32. Deceased Fathers Act 2003.

33. R v Human Fertilisation and Embryology Authority, ex p Blood [1997] 2 All ER 687 at 700.

34. Brazier, M and Glover, N Does medical law have a Future?’ in Hayton, D (eds) Law’s Future ( s ) (Oxford: Hart Publishing, 2000)Google Scholar.

35. The High Court has found that local authorities are not obliged to seek to prevent such travel by people within their care; ‘News report’ The Times 1 December 2004.

36. R v Cambridge Health Authority, ex p B [1995] 2 All ER 129.

37. R v Cambridge District Health Authority, ex p B [1995] 1 FLR 1055.

38. The NHS Improvement Plan: Putting People at the Heart of Public Services Cm 6268, 2004; Department of Health Reforming NHS Financial Flows: Introducing Payment by Results (London: Department of Health, 2002)Google Scholar.

39. See the discussions of similar issues in the context of the NHS ‘internal market’ of the 1990s by J Jacob ‘Lawyers go to hospital’[1991] Public Law 255 and Barker, K ‘Nhs contracting: shadows in the law of tort?’ (1995) 3 Med L Rev 161 CrossRefGoogle Scholar.

40. [2004] EWHC 1879 (Admin), [2004] 2 FLR 1121; see further below. This point did not find favour with the Court of Appeal; see [2005] EWCA Civ 1003, [2005] 2 FLR 1223 at para 31.

41. R (Watts) v Bedford Primary Care Trust and Secretary of State for Health [2003] EWHC 2228 (Admin), [2004] Lloyd’s Rep Med 113.

42. At para 19. It should be noted that this was the account given by Mrs Watts’ daughter, but that no medical evidence was filed to this effect from the French doctors because they declined to accept Mrs Watts as a patient once they were asked to supply information for court purposes; see para 20.

43. At para 43, after reviewing R v Cambridge Health Authority, ex p B [1995] 2 All ER 129 and R v North West Lancashire Health Authority, ex p A [2000] 1 WLR 977.

44. I have explored these issues in Montgomery, J The impact of European Union law on English health care law’ in Dougan, M and Spavanta, E (eds) Social Welfare and EU Law (Oxford: Hart Publishing, 2005)Google Scholar.

45. This is the clear implication of R v Cambridge Health Authority, ex p B [1995] 2 All ER 129, where such private treatment was given after funding from an anonymous donor.

46. The current form of Art 22(1) was inserted by Council Regulation 2793/81 of 17 September 1981 amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community and Regulation (EEC) No 574/72 fixing the procedure for implementing Regulation (EEC) No 1408/71 ([1981] OJ L275/1).

47. One of the preambles to the Regulation indicates that this extension was seen as a necessary improvement gained from experience in implementing the original Regulation. See the Court of Appeal’s comments in R (Watts) v Secretary of State for Health [2004] EWCA Civ 166, (2004) 77 BMLR 26 at para 36.

48. [1998] ECR I-1931.

49. [2001] ECR I-5363.

50. [2002] QB 409.

51. Case C-385/99, [2003] ECR I-4509.

52. At para 97.

53. At para 34; cited in Watts at para 113.

54. At paras 44 and 46; cited in Watts at para 114.

55. These arguments are reviewed in Watts at para 102.

56. For an earlier discussion of the risks of ‘rights’ in this respect, see J Montgomery ‘Patients first: the role of rights’ in Fulford, Ersser and Hope, above n 5.

57. See at para 27.

58. R (Watts) v Secretary of State for Health [2004] EWCA Civ 166, (2004) 77 BMLR 26.

59. Jacob, Jm Doctors and Rules (London: Routledge, 1988)Google Scholar. I discussed this book and set out the arguments summarised here in .

60. Kennedy, I The patient on the Clapham omnibus’ in Treat Me Right (Oxford: Oxford University Press, 1988) p 178 Google Scholar. Originally published in (1984) 47 MLR 454.

61. Ibid, pp 182–183

62. Ibid, p 182.

63. Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643.

64. Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 at 121.

65. Montgomery, J Medicine, accountability and professionalism’ (1989) 16 JLS 319 CrossRefGoogle Scholar.

66. Airedale NHS Trust v Bland [1993] 1 All ER 821; F v West Berkshire Health Authority [1989] 2 All ER 545; European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Arts 2 and 14.

67. Abortion Act 1967, s 1.

68. Human Tissue Act 1961.

69. I have illustrated this in Montgomery, J Time for a paradigm shift? Medical law in transition’ (2000) 53 Current Legal Problems 354 CrossRefGoogle Scholar especially at 373.

70. I began to explore the possibilities of this corporate approach to professional values in ibid, at 407–408.

71. I set out this argument in detail in Montgomery, above n 65, see especially at 327–331.

72. Wilsher v Essex Area Health Authority [1986] 3 All ER 801 at 810. The case proceeded to the House of Lords on the issue of causation.

73. Eg Sir Roger Ormrod ‘A lawyer looks at medical ethics’ [1978] Medico-Legal Journal 18.

74. Havard, J The legal threat to medicine’ (1982) 284 BMJ 612 CrossRefGoogle ScholarPubMed.

75. Eg Kennedy, I Malpractice litigation crisis? What crisis?’ in Byrne, P (ed) Medicine in Contemporary Society (London: King’s Fund, 1987) pp 52–63 Google Scholar

76. (2001) 9 Med L Rev 1.

77. See Montgomery, above n 69, at 374–378 and Montgomery, J Health Care Law (Oxford: Oxford University Press, 2003) pp 172–177 Google Scholar for discussion.

78. McLean, S ‘Negligence – a dagger at the doctor’s back?’ in Robson, P and Watchman, P (eds) Justice, Lord Denning and the Constitution (Farnborough: Gower, 1981)Google Scholar.

79. Whitehouse v Jordan [1980] 1 All ER 650 at 658. The House of Lords toned this down by saying that such an error would not ‘necessarily’ be negligent.

80. Hucks v Cole [1994] 4 Med LR 393

81. Hatcher v Black (1954) The Times, July 2. See also Denning, A The Discipline of Law (London: Butterworths, 1979) pp 242–244 Google Scholar.

82. Re W [1992] 4 All ER 627 at 633.

83. For the inequality of this partnership, see Montgomery Health Care Law, above n 77, pp 434–437.

84. Re J [1991] 3 All ER 930 at 934.

85. See Alderson and Montgomery, above n 8.

86. Re W (1992) 9 BMLR 22 at 31. See also Balcombe LJ at 41. For a challenge to this assumption, see Miola, J Medical law and medical ethics – complementary or corrosive?’ (2004) 6 Medical Law International 251 CrossRefGoogle Scholar.

87. Re R [1991] 4 All ER 177 at 185.

88. Ibid.

89. NHS Trust v M; NHS Trust v H [2001] 2 FLR 367.

90. Airedale NHS Trust v Bland [1993] 1 All ER 821, F v West Berkshire Health Authority [1989] 2 All ER 545.

91. Montgomery Health Care Law, above n 77, ch 18; Montgomery, above n 69, at 402–405.

92. Re B ( Adult Refusal of Treatment ) [2002] 2 All ER 449.

93. This can be seen in the emergence of closer scrutiny of healthcare practice in clinical negligence litigation, although the picture is not uniform; see Montgomery Health Care Law, above n 77, pp 172–177.

94. Re J [1990] 3 All ER 930.

95. [2002] 2 FCR 193.

96. R v Price [1969] 1 QB 541; R v Dhingra unreported (1991), Birmingham CC.

97. [2002] 2 FCR 193 at para 253.

98. Eg the very interesting suggestions that human rights law might lead to a reassertion of adolescents’ autonomy rights in disputes with their parents in Re Roddy (A Child) (Identification: Restriction on Publication); Torbay Borough Council v News Group Newspapers [2003] EWHC 2927 (Fam), [2004] 1 FCR 481.

99. As would be expected from Munby J, the judgment was brilliantly and densely argued at significant length – 224 paragraphs.

100. Munby J himself recognised this in R (Watts) v Bedford Primary Care Trust and Secretary of State for Health [2003] EWHC 2228 (Admin), [2004] Lloyd’s Rep Med 113 at para 43, discussed above. For further discussion of rights to treatment under the NHS, see Montgomery Health Care Law, above n 77, ch 3.

101. [2002] EWHC 429 (Fam), [2002] 1 FLR 1090.

102. Burke at paras 180–194.

103. [1991] Fam 33. See the text above at n 93.

104. [2004] EWHC 2247 (Fam), [2005] 1 FLR 21.

105. Wyatt v Portsmouth Hospital NHS Trust [2005] EWCA Civ 1181, [2005] 3 FCR 263 at para 62; R (Burke) v General Medical Council [2005] EWCA Civ 1003, [2005] 2 FLR 1223 at para 63.

106. Kennedy, above n 60.

107. Grubb, A Medical Law (London: Butterworths, 3rd edn, 2000) p 3 Google ScholarPubMed. Essentially the same quotation appears in each of the earlier editions, co-written by Ian Kennedy and Andrew Grubb.

108. Montgomery, above n 65.

109. A point brought out strongly in Miola, above n 86.

110. Brazier and Glover, above n 34.

111. R (Pretty) v Director of Public Prosecutions [2001] UKHL 61, [2002] 1 AC 800.

112. Pretty v UK [2002] 2 FLR 45.

113. See Montgomery, above n 69.

114. Montgomery, J Professional regulation: a gendered phenomenon?’ in Sheldon, S and Thomson, M (eds) Feminist Perspectives in Health Care Law (London: Cavendish, 1998)Google Scholar.

115. Montgomery, above n 69.