The Jurisdiction of Medical Law

Kenneth Veitch

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351146227
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book offers a critical analysis of some of the guiding principles and assumptions that have been central to the development and identity of medical law. Focusing on several key cases in the field - including the 'Dianne Pretty' and 'Conjoined Twins' cases - the book scrutinizes the notions of autonomy and human rights, and explores the relationship between medical law and moral conflict. It also asks what role, if any, the courts might play in stimulating public debate about the ethics of controversial developments in medicine and biomedical science. This innovative book will be of interest to academics and students working in the areas of medical law, legal theory, bioethics and medical ethics. It will also appeal to those within the medical and health care professions seeking a critical analysis of the development and operation of medical law.

Part I

Chapter 1
Jurisdiction and Academic Medical Law

Introduction

The argument advanced in this chapter is that some aspects of the academic medical law literature can usefully be interpreted through the prism of jurisdiction. This is especially true of academic writing that has sought to reflect on the nature of medical law, including what its function might be and how it ought to be constituted.¹ The relevance of jurisdiction in this context is principally twofold. Firstly, there is a discernable concern in this literature to determine the scope of the subject - which topics and areas, for example, should fall within its domain. Moreover, one detects a need to justify the existence of medical law as a separate legal sub-discipline - one that can be differentiated from more traditional legal subjects. In short, there is a desire to map out the territory or terrain of medical law, to determine, we might say, the province of medical law. Secondly, it is possible to investigate how some academic medical lawyers make the claim that law should develop jurisdiction over medical issues. What mechanisms do they deploy for this purpose'? In order to illustrate this, reference will be made to some of Ian Kennedy's more reflective writings on medical law. It will be argued that the central features of his work a concern to empower patients (and, consequently, disempower doctors) and the argument that ethical issues arising within medical practice must be determined outside of the medical profession - are not simply meant to improve current medical practice; they can also be thought to be one way in which the academic claims legal jurisdiction in this area (for the academic, the courts and the legislature). For the academic, this claim to jurisdiction is essential as it works to satisfy his or her desire to create a distinct subject within the legal academy that will act as a base from which he or she can claim to have the expertise to pronounce on controversial issues (especially ethical ones) arising in the course of medical practice. This affords legal academics the opportunity to develop a sphere of competence of sorts - that is, a jurisdiction - over those issues.

Some writing in academic medical law, however, is not merely intended to have effects within the law school. For some, its purpose is also to influence the nature of medical law in practice, especially within the courts. Thus, it is often intended that the stress placed in the literature on both patients' rights and the external determination of ethical issues arising from medical practice ought to be reflected in legal practice. While this chapter will touch upon the question of 'practical' legal jurisdiction, an inquiry into the extent to which the specific objectives of academics' arguments are, and can be, replicated in the courtroom will have to await future chapters. This will obviously demand a consideration of how members of the judiciary have defined their role in this emerging area of the common law. Anticipating this, towards the end of this chapter the observations of one academic (Jonathan Montgomery) regarding the potential difficulties of replicating the visions of some academic medical lawyers within the common law will be noted.

'What is Medical Law?' and the Question of Jurisdiction

So how is the subject named medical law, or health care law, constituted? Does it have an identity? Is there agreement regarding its nature and boundaries? ... To be fair, it is doubtful whether a full account of the legal regulation of all aspects of health care and medical treatment can be given in one volume alone. (O' Donovan 1998, vii)

There has been no lack of reflection upon the nature of medical law in recent years.² The 'What is medical law?' type question has been raised by many of the influential writers in this field.³ The question posed here is, why? What might be the reasons for asking such a question, and what can the answers that are given to it reveal about the preoccupations of those involved in this relatively new sub-discipline of law? The argument advanced here is that those answers illustrate concerns that are bound up with questions of jurisdiction.

The first and perhaps most obvious, reason for seeking to define what medical law is relates to the attempt to determine the scope of the subject. In other words, the purpose of the question here might be thought to be directed toward identifying the nature of the actors and topics that ought to constitute the subject's focus of study. An example of this concern with scope can be seen in the first sentence of Jonathan Montgomery's book Health Care Law. 'The academic study of health care law is still a relatively young discipline and no consensus has yet been reached as to its proper scope' (Montgomery 2003. 1). Immediately, it is apparent that Montgomery refers to 'health care law' and not 'medical law'. In doing so, his purpose is not only to define the topics he considers form the focus of his subject but also to point out how these exceed the boundaries of what he understands to be 'medical law': '[T]he subject of health care law is wider than medical law. It embraces not only the practice of medicine, but also that of the non-medical health care professions, the administration of health care services and law's role in maintaining public health' (Montgomery 2003, 3).

Thus, by defining health care law. Montgomery simultaneously defines what he considers the scope of medical law to be. The latter, he says, 'sees the clinical interaction between doctor and patient as the paradigm. This view influences both the content of the subject, individualizing its focus, and its underlying conceptual coherence, emphasizing the application of ethical principles' (Montgomery 2003.1 ). According to Montgomery, while health care law encompasses this, it can be thought to extend beyond the boundaries of medical law

This is all very straightforward and an eminently sensible way of defining the areas of focus that help delineate the boundaries of a subject of study. But, even at this most basic of levels, this concern with the scope and territory of subjects can usefully be understood as one involving the question of jurisdiction. As Montgomery observes, this need to map out boundaries is mainly a result of the relative novelty of both health care law and medical law as academic subjects within the legal academy. And it is this point about the novelty of medical law as an academic subject that forms the basis of the second possible reason why academics in this area feel compelled to pose the question: 'What is medical law?'.

The emergence of medical law as an academic subject has not been uncontroversial. But perhaps the most serious charge to have been levelled against it is captured by Derek Morgan in his observation that: 'The question "what is medical law?" is sometimes posed in a form that appears to assert that "medical law is not a subject'" (Morgan 2001, 3). He interprets this assertion as a charge not that medical law is not a subject yet - that is, that while it does not presently possess a sufficiently mature framework and conceptual basis to lay claim to independence in its own right, it might do so at some point in the future - but that it is nothing more (and presumably destined to be nothing more) than 'an amalgam of traditional categories of tort, contract and criminal law'⁴ (Morgan 2001. 3). Morgan's interpretation is no doubt correct, especially when the assertion emanates from those whose legal education has been founded on the writings of Salmond, Chitty and Anson (to use Morgan's own examples). But this charge - that 'medical law is not a subject' - is also often levelled by those who are amenable to less turgid and prescriptive approaches to law and legal scholarship. Here, the criticism is less concerned with the need for mature legal frameworks than it is with the suggestion that medical law is not a sufficiently rigorous subject. Thus, for example, while questions of ethics have come to dominate medical law, at least in its academic form, this often manifests itself in the unreflective, wholesale adoption of ethical concepts such as justice and autonomy. The lack of rigorous analyses of such concepts within the literature leads to charges that the subject is most accurately, indeed perhaps only, characterized by its rhetoric and, as such, does not deserve to be taken seriously. Whether or not Morgan has this type of critic in mind too when responding to the general charge that 'medical law is not a subject', his reply is both robust and profound:

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. 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'. (Morgan 2001, 3; emphasis in original; references omitted)

This broad understanding of medical law takes one far beyond Montgomery's concern with delineating its specific scope. Indeed, given the reference to 'responsibility', and despite his argument to the contrary. Morgan is perhaps more interested in answering the question: 'What is medical law for?'⁵ (Morgan 2001,6; emphasis added). And the interdisciplinary approach to the subject he sketches out is meant to suggest that the issues in this area cannot be contained within a prescriptive set of legal categories. Indeed, to characterize those issues as solely 'legal' ones misses, amongst other things, their 'important philosophical, ethical, sociological and political dimensions' (Morgan 2001, 5).

Morgan's reason for asking the question: 'What is medical law?', and the answers he offers to this, can be thought to concern the question of jurisdiction, but in a paradoxical sense. On the one hand, his characterization of medical law is designed to guard against any sense of clearly defined boundaries in this field. Thus, when discussing what he calls 'the context of medical law', he comments that: 'The context is illustrated by the failure of the traditional approach [to legal scholarship] to recognise either the scope or the terrain of medical law or its intellectual parameters' (Morgan 2001.4; emphasis in original). Medical law is not simply about law; rather, the questions and issues with which it is concerned have 'philosophical, ethical, sociological and political dimensions' too. For Morgan, to ask what medical law is, is not primarily a question of the need to delineate boundaries - indeed quite the opposite. It points to the need to acknowledge that medical law transcends the traditional legal requirement for a clear and settled framework. If medical law has a definable feature at all, it might be thought to reside in the nature of the problems it seeks to address (problems arising from developments in medicine and biomedical science that engage questions of human values), rather than in the construction of clearly delineated legal boundaries.

On the other hand. Morgan's defence of medical law as a subject that undercuts the traditional need for legal boundaries can still usefully be understood in jurisdictional terms. This is because there is a need - indeed, 'an intellectual responsibility' within the legal academy for the existence of a subject that, in order to devote itself to the study of those problems, does not, and cannot, conform to the idea of the law subject as based on traditional legal categories because it transcends such an idea and, indeed, the discipline of law itself. In other words, it is the multi-faceted and pressing nature of those problems (that, in Morgan's view, deny the possibility of clear boundaries) that creates the very need to carve out an identifiable space within the legal academy where they can be discussed and analysed by academics and researchers. This is necessary as it facilitates the construction of a sphere of competence or domain of expertise that allows those agents to claim to speak with some authority about those problems. If you like, the inquiry into the nature of medical law is, at least partially, an exercise in legitimation.⁶

Montgomery's and Morgan's reflections on the nature of their subjects can therefore usefully be understood in jurisdictional terms. But can this 'jurisdictional' characterization of academic medical law be applied more generally to the work in this field? In claiming that it can, we will now focus on two further aspects of Morgan's idea of medical law - a general concern for the individual and his or her rights⁷ and the role of law in setting ethical standards in this area - that pervade most other reflections on the nature and objectives of the subject.⁸ It will be argued that those aspects have played an integral role in defining much of the academic subject known as medical law. Specifically, they have been central in grounding the academic's claim that law should develop jurisdiction in this area. They have been deployed, at least partly, with the intention of creating and sustaining a foothold for law in the many problems and controversial issues emanating from medical practice and developments in biomedical science. In order to demonstrate this, the following section focuses upon some of the work of one academic - Ian Kennedy - who has promoted the idea of medical law as bound up with the rights of individuals and ethics.⁹ Thereafter, the impact of these aspects of Kennedy's work on some other academic writing in this field will be discussed.

Rights, Ethics and the Jurisdiction of Medical Law

Kennedy's thesis

The starting point for this inquiry must be Kennedy's essay 'What is a medical decision?', originally a paper delivered at the Middlesex Hospital Medical School in 1979 (Kennedy 1988b). As an aside. Kennedy prefaces his talk with the usual jousting between the medical and legal professions by pointing out that he is a lawyer, not a medic, and that some members of the audience may therefore disagree with what he has to say. Nonetheless, he says that he hopes that his approach will engender an ethos of 'mutual enquiry' between the two professions. Little did those medics in the audience know that Kennedy was about to challenge their exclusive jurisdiction over the making of the types of decisions that have become fundamental to defining the work they do.

Kennedy begins by saying that doctors make decisions about health and ill health. But what are these, exactly? At its most basic level, ill health, for example, may depend solely on an individual's physical condition; that is, if he or she deviates from the 'healthy' norm (also defined by members of the medical profession), this will warrant a designation of ill health. The notions of health and ill health may, however, be expanded to include individuals' mental conditions and their social well-being generally. This broad definition of health is, in fact, the one adopted by the World Health Organization in the Preamble to its founding Constitution: 'Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity' (World Health Organization 1948). Thus, if doctors have the 'unique competence' to make decisions about what constitutes health and ill health, that sphere of competence can, potentially, incorporate not only physical conditions but 'the management of our comfort and happiness, our social well-being' (Kennedy 1988b, 21).

At root. Kennedy's objection to this 'unique competence' is based on what he understands by the adjective 'medical'. In his view, this ought to be interpreted narrowly to include such technical matters as diagnosis, prognosis and the determination of the various treatment options available for a particular illness. However, as there are many non-technical aspects to the decisions that medical professionals make, these decisions cannot properly be described as 'medical'. Consequently, those non-technical aspects - which Kennedy says may include 'questions of morality or philosophy or economics or politics' (Kennedy 1988b. 24) - fall outside of 'the unique or special competence of a doctor' (Kennedy 1988b. 20). So, to take morality as an example. Kennedy argues that decisions about the quality of life of patients are moral decisions and, as such, engage moral principles that ought not to be determined exclusively by members of the medical profession. Rather, they are principles that emanate from moral debate within the wider world. Should this point remain unacknowledged, it would mean that the moral value systems of doctors, and not those of the wider world, would dictate which moral principles ought to apply in any given circumstance. To put it briefly. Kennedy argues that, given the multi-faceted nature of the decisions medical professionals are required to make, those decisions should not remain the preserve of doctors. The last paragraph of his essay outlines the direction in which he believes we ought to be moving:

The other direction of the debate I am asking for calls for doctors to involve others in the dilemmas they face, to give up their closely guarded professional secrecy, and hence some of their power, and to indicate just what it is that they do and have to decide, so that we may all discuss it, and assist in deciding what is right. (Kennedy 1988b, 31; emphasis added; reference omitted)

How does Kennedy confront this issue of medical power, including what he argues is the medical profession's monopoly over the determination of which moral principles ought to apply to particular issues arising in medical practice? He does so by claiming that law should develop jurisdiction in this area: 'The ground rules must be set by society...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Dedication
• Acknowledgements
• Introduction
• Part I
• Part II
• Part III
• Conclusion
• Bibliography
• Index