Beyond Demoralisation: Grounding Medical Law in Social Practice and Tradition
Authors: Watkins, M. and John, H.
Conference: Society of Legal Scholars
Dates: 6-8 September 2022
Abstract:Medical Law emerged from a need to collectivise and rationalise a disparate content of criminal, contract, public and tort law and to combat what was perceived as the malignant problem of medical paternalism. Law was constructed around duties and rights operating within the doctor-patient relationship. It was argued that Medical Law should be conceptualised as a form of human rights. The various patient rights would be extended through common law (judicial activism), by extending rights concepts, and placing substantive duties (with associated normative standards) on doctors. This right’s perspective remains fixated on ensuring the facilitation of patient autonomous choice, as the paramount ethical principle, and indeed, teleology of medical provision. However, this fixation has generated several, of what we term ‘pathologies of law.’ These pathologies have been identified by several commentators. For example, Coggon and Miola identify the conceptual confusion between the ethical principles of autonomy and liberty, Coggon goes on to identify the arbitrary use of conflicting models of autonomy (as the justifications of judgements in Best Interests), Miola identifies the problems of normative responsibility between law and ethics, and Foster delineates how autonomy acts as a tyranny upon medical decision-making. Beyond the conceptual, socio-legal commentators, such as Heywood, have identified how these pathologies encourage defensive practice, or rejection of the law and ethics. These authors recognise that these problems have contributed to significant and reoccurring healthcare scandals. However, as of yet, no rights-orientated commentator has provided a satisfactory remedy for medical law beyond fine-tuning or increasing regulation. We argue that Montgomery has gone the furthest to diagnose the reasons for the breakdown: the demoralisation of law. Simply, that ever-more law and ethics have acted to obscure and undermine the moral orientation of medical professionals and the reality of everyday medical practice. Montgomery suggests a reorientation of law which recognises the medical relationship in the context of professional norms and systems of health; vis a vi, Healthcare Law. We argue that Montgomery, however, does not go far enough, to recognise the relationship between the internal morality, the organisation of professions, and their connection to society, place and time. We drawn on MacIntyre, to reject the universalisable claims of modern ethics (implicit within modern medical law). Instead, we suggest that the language and meaning of ethics is currently divorced from its’ cultural, historical and phenomenological foundations. We argue, to ensure coherence; law must be grounded on values drawn from the tradition, history, time and place, in which law seeks to operate. We therefore argue for a reconstitution towards ‘Health Law’; which recognises the connection between the medical relationship, professions and institutions of health, society. The movement towards Health Law is essential within the context of a devolved UK (particularly the delineating jurisdiction of England and Wales in matters of Health) and within a complex, globalised world.
Source: Manual