This Special Issue of the Medical Law Review has its origins in a conference in November 2016 celebrating the 30th anniversary of the Centre for Social Ethics and Policy (CSEP) at the University of Manchester. CSEP was not alone in hailing 2016 as a key milestone in research and education relating to bioethics and law in the UK. In London, the Centre for Medical Law and Ethics founded by Ian Kennedy and Andrew Grubb also marked 30 years of academic life. Those three decades witnessed teaching and research in the field establish firm roots across the UK in undergraduate and postgraduate courses, in doctoral study and in publications. In 1990, Ian Kennedy and Andrew Grubb founded this journal.
ABSTRACTThis commentary explores the Court of Appeal’s decision in the case of Rose1 in order to assess the risk of liability for gross negligence manslaughter currently faced by the medical profession in the event that negligence causes the death of a patient. Subtly modifying the test established in Adomako,22Rose confirms that in order to be potentially liable, there must be a serious risk of death that was, rather than ought to have been, obvious/foreseeable to the defendant. Consequently, in more complex cases where the serious risk of death is not immediately obvious, negligently failing to assess risk seems to prevent potential liability on the basis that the putative defendant was in a position of negligent ignorance.
This article draws on a recent targeted consultation conducted by the Australian National Health and Medical Research Council to put forward strategies for supporti ng return of finding decision-making. In particular, we propose a pyramid of decision-making support: decision-making guidelines, technical and interpretative assistance, and ethical assistance for intractable “tough” cases. Each step of the pyramid involves an increasing level of regulatory inv olvement and applies to a smaller subsection of genomic research findings. Implementation of such strategies would facilitate a growing evidence base for return of finding decisions, thereby easing the financial, time, and moral burdens currently placed on researchers and other relevant decision-mak ers while also improving the qual...
Leder, D. 2016. The Distressed Body. Chicago: University of Chicago Press.
AbstractThe first part of an issue devoted to Alex Broadbent’s essay titled “Prediction, Understanding, and Medicine,” this article notes the under-development of a variety of issues in the philosophy of medicine that transcend bioethics and the longstanding debates about the nature of health/illness and of evidence-based medicine. It also indicates the importance of drawing on non-Western, and particularly African, traditions in addressing these largely metaphysical and epistemological matters.
AbstractWhat is medicine? One obvious answer in the context of the contemporary clinical tradition is that medicine is the process of curing sick people. However, this “curative thesis” is not satisfactory, even when “cure” is defined generously and even when exceptions such as cosmetic surgery are set aside. Historian of medicine Roy Porter argues that the position of medicine in society has had, and still has, little to do with its ability to make people better. Moreover, the efficacy of medicine for improving population health has been famously doubted by historians and epidemiologists. The curative thesis demands that we have mostly been stupid, duped, or staggeringly hopeful, given that medicine has not until recently offered more than a handful of effective cures. I suggest, in this article, that the core medical competence is neither to cure, nor to prevent, disease, but to understand and to predict it. I argue that this approach does a better job than the curative thesis at explaining why not all medicine is concerned with curative efforts and that it enjoys historical support from the ancient entanglement of prophecy and medicine and from the fact that medicine thrived for centuries with almost no effective cures and continues to thrive today in various forms that are mostly without curative efficacy. I suggest that this approach grounds a fairer approach to alternative, traditional, and other medical practices, as well as some fresh lessons for the development of mainstream medicine.
AbstractIn his article “Prediction, Understanding, and Medicine,” Alex Broadbent argues that the nature of medicine is determined by its competences, that is, which things it can do well. He argues that although medicine cannot cure well, it can do a good job of enabling people not only to understand states of the human organism and of what has caused them, but also to predict future states of it. From this, Broadbent concludes that medicine is (at least in part) essentially a practice of understanding and predicting, not curing. In reply to this bold position, I mount two major criticisms. First, I maintain that the reasons Broadbent gives for doubting that medicine can cure provide comparable reason for doubting that medicine can provide an understanding; roughly, the best explanation of why medicine cannot reliably cure is that we still lack much understanding of health and disease. Second, I object to the claim that a practice is medical only if it facilitates understanding and prediction. Although Broadbent has brought to light certain desirable purposes of medicine that are underappreciated, my conclusion is that he has not yet provided enough reason to think that understanding and prediction are essential to it. Instead of supposing that medicine has an essence, in fact, I suggest that its nature is best understood in terms of a property cluster.
AbstractIn “Prediction, Understanding, and Medicine,” Alex Broadbent rejects the curative thesis, the view that the core medical competence is to cure, in favor of his predictive thesis that the main intellectual medical competence is to explain and the main practical medical competence is to predict. Broadbent thinks his account explains the phenomenon of multiple consultation, which is the fact that people persist in consulting alternative medical traditions despite having access to mainstream medicine. I argue that Broadbent’s explanation of multiple consultation makes sense only from the perspective of patients who migrate from mainstream to alternative consultation. His explanation is not as convincing when we consider alternative-to-mainstream migration. I also provide an argument against Broadbent’s view that prediction is medicine’s main practical competence and argue that, when it comes to explaining most cases of multiple consultation, the curative thesis provides a more convincing explanation than the predictive thesis.
AbstractThis article is a reply to two critics of my “Prediction, Understanding, and Medicine,” published elsewhere in this journal issue. In that essay, I argued that medicine is best understood not as essentially a curative enterprise, but rather as one essentially oriented towards prediction and understanding. Here, I defend this position from several criticisms made of it.
AbstractThere is broad agreement among research ethicists that investigators have a duty to obtain the informed consent of all subjects who participate in their research trials. On a common view, the duty to obtain this informed consent follows from the need to respect persons and their autonomous decisions. However, the nature of informed consent and the demands it places on investigators are open to dispute and recently have been challenged. Respect for persons, it has been claimed, does not require investigators to guarantee that the subjects enrolled in their trials comprehend the risk/benefit information disclosed to them or even that they appreciate the difference between research and therapy. According to this critique, the significance of defects in informed consent, like therapeutic misconception or unrealistic optimism, has been greatly exaggerated. This article reevaluates informed consent in clinical research in light of this critique. It not only rebuts the main points the critics raise, but also shows that other points they raise can be accepted by a doctrine of informed consent that resembles the common view in maintaining that autonomous authorization is central to informed consent.
AbstractOnce described as hermaphrodites and later as intersex people, individuals born with intersex variations are routinely subject to so-called “normalizing” medical interventions, often in childhood. Opposition to such practices has been met by attempts to discredit critics and reasserted clinical authority over the bodies of women and men with “disorders of sex development.” However, claims of clinical consensus have been selectiv ely constructed and applied and lack evidence. Limited transparency and lack of access to justice have helped to perpetuate forced interventions. At the same time, associated with the diffusion of distinct concepts of sex and gender, intersex has been constructed as a third legal sex classification , accompanied by pious hopes and unwarranted expec...
ABSTRACTThis commentary considers the General Medical Council’s new guidance, Confidentiality: Good Practice in Handling Patient Information, which came into effect in April 2017. The commentary highlights some of the changes from the previous guidance and argues that, while some areas could have been developed further, the new guidelines are in general more detailed and user-friendly than previously, and will therefore be of benefit to practitioners. The commentary also highlights further developments on the horizon, such as new data protection legislation.
Some of the best instances of bioethics are applications of ethical conceptual analysis to real-world cases that is done in a way that prompts both reflection on the part of the practitioners involved in the real-world case and reflection by the bioethicist on the way in which the field of bioethics understands the concept in question.
Buth et al’s paper in this issue is a fine example of just this (see page 299; Editor’s choice). Their paper brings together three important concepts that straddle the worlds of politics and ethics and are to some extent under-theorised in applied settings. These three concepts – moral narcissism, moral complicity and dirty hands – raise particular problems for the activities of researchers, aid workers and others from richer countries working in poorer or conflict-torn parts of the world.
Buth et al set out a general account of these concepts and their relationship. Their focus is substantially on complicity largely...
This document is designed to give guidance on assessing researchers in bioethics/medical ethics. It is intended to assist members of selection, confirmation and promotion committees, who are required to assess those conducting bioethics research when they are not from a similar disciplinary background. It does not attempt to give guidance on the quality of bioethics research, as this is a matter for peer assessment. Rather it aims to give an indication of the type, scope and amount of research that is the expected in this field. It does not cover the assessment of other activities such as teaching, policy work, clinical ethics consultation and so on, but these will be mentioned for additional context. Although it mentions the UK’s Research Excellence Framework (REF), it is not intended to be a detailed analysis of the place of bioethics in the REF.
Since the enactment of the euthanasia law in the Netherlands, there has been a lively public debate on assisted dying that may influence the way patients talk about euthanasia and physician-assisted suicide (EAS) with their physicians and the way physicians experience the practice of EAS.
To show what developments physicians see in practice and how they perceive the influence of the public debate on the practice of EAS.
We conducted a secondary analysis of in-depth interviews with 28 Dutch physicians who had experience with a complex case of EAS. Respondents were recruited both by the network of physicians working for SCEN (Support and Consultation for Euthanasia in the Netherlands) as well as via a national questionnaire, wherein participating physicians could indicate their willingness to be interviewed.
Three themes came up in analysing the interviews. First, the interviewed physicians experienced a change in what (family of) patients would expect from them: from a role as an involved caregiver to being the mere performer of EAS. Second, interviewees said that requests for EAS based on non-medical reasons came up more frequently and wondered if EAS was the right solution for these requests. Last, respondents had the impression that the standards of EAS are shifting and that the boundaries of the EAS regulation were stretched.
The perceived developments could make physicians less willing to consider a request for EAS. Our results also raise questions about the role of physicians and of EAS in society.
Euthanasia and assisted suicide (EAS) was openly permitted but not technically legal in the Netherlands for decades. In 2002, it was formally legalised through the Termination of Life on Request and Assisted Suicide Review Procedures Act, subject to two main criteria: (1) the patient had to be capable of making voluntary decisions and (2) the patient had to experience unbearable suffering without prospect of improvement. Within the Netherlands, EAS has wide acceptance, and the public in general seems to favour a liberal interpretation of both of these requirements. Physicians are expected to use ‘their own moral compass’ to decide about personal participation, and it is generally possible and permissible to find a substitute physician if the patient meets the legally required criteria but the physician is not comfortable assisting. Over the years, multiple quantitative and qualitative studies have explored the Dutch practice of EAS,1–3
Humanitarian organisations often work alongside those responsible for serious wrongdoing. In these circumstances, accusations of moral complicity are sometimes levelled at decision makers. These accusations can carry a strong if unfocused moral charge and are frequently the source of significant moral unease. In this paper, we explore the meaning and usefulness of complicity and its relation to moral accountability. We also examine the impact of concerns about complicity on the motivation of humanitarian staff and the risk that complicity may lead to a retreat into moral narcissism. Moral narcissism is the possibility that where humanitarian actors inadvertently become implicated in wrongdoing, they may focus more on their image as self-consciously good actors than on the interests of potential beneficiaries. Moral narcissism can be triggered where accusations of complicity are made and can slew decision making. We look at three interventions by Médecins Sans Frontières that gave rise to questions of complicity. We question its decision-guiding usefulness. Drawing on recent thought, we suggest that complicity can helpfully draw attention to the presence of moral conflict and to the way International Non-Governmental Organisations (INGOs) can be drawn into unintentional wrongdoing. We acknowledge the moral challenge that complicity presents to humanitarian staff but argue that complicity does not help INGOs make tough decisions in morally compromising situations as to whether they should continue with an intervention or pull out.
As the demand for healthcare rises, so does the need for priority setting in healthcare. In this paper, I consider a prominent priority-setting principle: proportional shortfall. My purpose is to argue that proportional shortfall, as a principle, should not be adopted. My key criticism is that proportional shortfall fails to consider past health.
Proportional shortfall is justified as it supposedly balances concern for prospective health while still accounting for lifetime health, even though past health is deemed irrelevant. Accounting for this lifetime perspective means that the principle may indirectly consider past health by accounting for how far an individual is from achieving a complete, healthy life. I argue that proportional shortfall does not account for this lifetime perspective as it fails to incorporate the fair innings argument as originally claimed, undermining its purported justification.
I go on to demonstrate that the case for ignoring past health is weak, and argue that past health is at least sometimes relevant for priority-setting decisions. Specifically, when an individual’s past health has a direct impact on current or future health, and when one individual has enjoyed significantly more healthy life years than another.
Finally, I demonstrate that by ignoring past illnesses, even those entirely unrelated to their current illness, proportional shortfall can lead to instances of double jeopardy, a highly problematic implication. These arguments give us reason to reject proportional shortfall.
We do not always benefit from the expansion of our choice sets. This is because some options change the context in which we must make decisions in ways that render us worse off than we would have been otherwise. One promising argument against paid living kidney donation holds that having the option of selling a ‘spare’ kidney would impact people facing financial pressures in precisely this way. I defend this argument from two related criticisms: first, that having the option to sell one’s kidney would only be harmful if one is pressured or coerced to take this specific course of action; and second, that such forms of pressure are unlikely to feature in a legal market.
In December 2015, Wales became the first country in the UK to move away from an opt-in system in organ procurement. The new legislation introduces the concept of deemed consent whereby a person who neither opt in nor opt out is deemed to have consented to donation. The data released by the National Health Service (NHS) in July 2017 provide an excellent opportunity to assess this legislation in light of concerns that it would decrease procurement rates for living and deceased donation, as well as sparking an increase in family refusals. None of these concerns have come to pass, with Wales experiencing more registered donors, fewer family refusals and more living donations. However, as the number of actual donors has dropped slightly from a high level, the situation must be monitored closely in the years to come.