The growing need to recognise distinct health values as a basis for 'Welsh' Health Law
Authors: Watkins, M. and Harrington, J.
Publisher: Public Law Wales
Place of Publication: Public Law Wales
Abstract:Health, and especially public health, is a hugely important issue in Wales; socially, economically and politically. The 2020-2021 budget saw spending on Health and Social Services makes up around 8-9% of the annual budget, and this is estimated to grow by 5.2% (in nominal terms to £419m) during next year, with additional funds being allocated in light of Covid-19. Despite this significant spending the people of Wales continue to suffer from a legacy of industrial related disease, poor health and illness resulting from poverty and social deprivation. Despite Wales’s unique health and social need, the Westminster government have long continued to adopt universal health policy and facilitative laws, which are designed around a British model of the NHS. By British, we mean a model that is usually tailored to ‘English’ rather than ‘Welsh’ health needs and values. This policy, particularly during the Thatcher, and New Labour years, focused on values which promoted the maximisation of consumer choice, liberalism and breaking up of services, to create competition and markets of medicine. These values of the liberal model of health, have percolated into common law through various judgements (particularly in the law relating to mental capacity, best interests and consent) within the common law of England and Wales. Autonomy and the rhetoric of patient rights have been cast as ethical trump cards and been adopted in consolidatory pieces of legislation – again flowing from Westminster, with little devolved consultation. Thus, the cycle of English value-colonisation has continued. Recently legal and bioethical commentators have rightly criticised this ethical model of medicine, and its manifestation in law, as lacking empirical reflexivity, abstracting law and ethics from the systems and context in which medicine operates, and demoralising medicine – causing doctors to act formalistically – rather than in the interests of their actual patients. These problems of top-down systems of law and policy have been exacerbated in the Welsh context due to the sparse demography, linear infrastructure, diverse health needs, and perceived role of health in society. The patient has been recast as an autonomous consumer, holding rights, and entitled to a smorgasbord of treatments; the doctor simply became a provider of medical services. These liberal values stand in sharp relief to the more traditional values of Welsh healthcare, which prioritised: communitarian approaches to health (where services were designed to facilitate close-knit Welsh communities) and the values of solidarity and egalitarianism; exemplified through the creation of organisations such as the Tredegar Workmen’s Medical Aid Society (which acted as the inspiration for the modern NHS). This paper argues that it has long been recognised that health law and policy must instead be tailored to the unique dynamic of the Welsh patient, the NHS in Wales, and Welsh health values. Relying on MacIntyre, these authors suggest that these values can be delineated through a combination of historicism (i.e. through investigation and analysis of the culture and tradition of Welsh health care) and empiricism (i.e. by sociological investigation into the internal morality of medicine, how the Welsh NHS functions, and the values that influence decisions in practice). From analysis of policy, culture and law, this paper posits four potential Welsh values: (1) Deliberation, (2) Solidarity (3) Equality, and (4) Sustainability. These values have already manifest within health policy and law after the GOWA 1998 e.g. through the creation of Community Health Councils, the reformation of infrastructure, and discreet pieces of law. However, the movement to Schedule 7, GOWA 2006, and the devolution of primary law-making powers, in combination the adoption of a reserved power, in the Wales Act 2017, now for the first time, provides the Government of Wales the legislative competence to fashion a health system that is distinctly Welsh. Utilising Welsh values, as an ethical bedrock, to construct health law, ensures that those laws are concordant with the realities of health in Wales, and avoid repeating the ethical mistakes of the past. These values (and their ethical justification) also have the potential to rationalise, connect and collate the astonishing array of sources of law, flowing from the Senedd, Westminster, and Europe, into one discrete area of law; during the codification programme. More immediately, these values allow a lens from which policy makers can ethically justify (and/or critique) the Welsh Government’s distinct approach to Covid-19, and particularly their comparatively authoritative approach to public health law and policy.
Source: Manual