Autonomy is a vital principle in medical law and ethics. It occupies a prominent place in all medico-legal and ethical debate. But there is a dangerous presumption that it should have the only vote, or at least the casting vote. This book is an assault on that presumption, and an audit of autonomy's extraordinary status. This book surveys the main issues in medical law, noting in relation to each issue the power wielded by autonomy, asking whether that power can be (...) justified, and suggesting how other principles can and should contribute to the law. It concludes that autonomy's status cannot be intellectually or ethically justified, and that positive discrimination in favour of the other balancing principles is urgently needed in order to avoid some sinister results. 'This book is a sustained attack on the hegemony of the idea of autonomy in medical ethics and law. Charles Foster is no respecter of authority, whether of university professors or of law Lords. He grabs his readers by their lapels and shakes sense into them through a combination of no-nonsense rhetoric and subtle argument that is difficult to resist.' Tony Hope, Professor of Medical Ethics, Oxford University 'This book is unlikely to be in pristine state by the time you have finished reading it. Whether that is because you have thrown it in the air in celebration or thrown it across the room in frustration will depend on your perspective. But this book cannot leave you cold. It is a powerful polemic on the dominance of autonomy in medical law, which demands a reaction. Charles Foster sets out a powerful case that academic medical lawyers have elevated autonomy to a status it does not deserve in either ethical or legal terms. In a highly engaging, accessible account, he challenges many of the views which have become orthodox within the academic community. This will be a book which demands and will attract considerable debate.' Jonathan Herring, Exeter College, Oxford University 'This is a learned, lively and thought-provoking discussion of problems central to the courts' approach to ethical issues in medical law. What principles are involved? More significantly, which really underlie and inform the process of seeking justice in difficult cases? Charles Foster persuasively argues, and demonstrates, that respect for autonomy is but one of a number of ethical principles which interact and may conflict. He also addresses the sensitive issue of the extent to which thoughts and factors which go to influence legal decisions may not appear in the judgments.' Adrian Whitfield QC. 'Introducing the Jake La Motta of medical ethics. Foster is an academic street-fighter who has bloodied his hands in the court room. He provides a stinging, relentless, ground attack on the Goliath of medical ethics: the central place of autonomy in liberal medical ethics. This is now the first port of call for those who feel that medical ethics has become autonomized.' Julian Savulescu, Uehiro Chair in Practical Ethics, University of Oxford. "This important book offers a robust challenge to anyone, whether lawyer or 'ethicist', who sees respect for autonomy as the only game in town. It argues eloquently and effectively that, on the one hand, despite the reverence paid to it by judges, in practice the law, even in the context of consent, weaves together a number of moral threads of which autonomy is merely one, in the pursuit of a good decision. It argues on the other hand, that were the day-to-day practice of law to be guided primarily by respect for autonomy, this would be wrong. Foster concludes that whilst, 'any society that does not have laws robustly protecting autonomy is an unsafe and unhappy one', so too would be a society in which too much emphasis was placed on respect for autonomy at the expense of other important moral principles. This is essential reading for anyone interested in the role of autonomy and indeed of medical ethics, in the law." Michael Parker, Professor of Bioethics, University of Oxford. (shrink)
In English law there is a strong presumption that life should be maintained. This article contends that this presumption means that it is always unlawful to withdraw life-sustaining treatment from patients in permanent vegetative state and minimally conscious state, and that the reasons for this being the correct legal analysis mean also that such withdrawal will always be ethically unacceptable. There are two reasons for this conclusion. First, the medical uncertainties inherent in the definition and diagnosis of PVS/MCS are such (...) that, as a matter of medical fact, it can never be established, with the degree of certainty necessary to rebut the presumption, that it is not in the patient’s best interest to remain alive. And second, that even if permanent unconsciousness can be unequivocally demonstrated, the presumption is not rebutted. This is because there is plainly more to human existence than consciousness. It can never be said that the identity of the patient whose best interests are at stake evaporates when that person ceases to be conscious. Nor can it be said that the best interests of an unconscious person do not mandate continued biological existence. We simply cannot know. That uncertainty is legally conclusive, and should be ethically conclusive. (shrink)
Over the last quarter of a century, English medical law has taken an increasingly firm stand against medical paternalism. This is exemplified by cases such as Bolitho v City and Hackney Health Authority, Chester v Afshar, and Montgomery v Lanarkshire Health Board. In relation to decision-making on behalf of incapacitous adults, the actuating principle of the Mental Capacity Act 2005 is respect for patient autonomy. The only lawful acts in relation to an incapacitous person are acts which are in the (...) best interests of that person. The 2005 Act requires a holistic assessment of best interests. Best interests are wider than ‘medical best interests’. The 2018 judgment of the Supreme Court in An NHS Trust v Y from patients in prolonged disorders of consciousness ) risks reviving medical paternalism. The judgment, in its uncritical endorsement of guidelines from various medical organisations, may lend inappropriate authority to medical judgments of best interests and silence or render impotent non-medical contributions to the debate about best interests—so frustrating the 2005 Act. To minimise these dangers, a system of meditation should be instituted whenever it is proposed to withdraw life-sustaining CANH from patients with PDOC, and there needs to be a guarantee of access to the courts for families, carers and others who wish to challenge medical conclusions about withdrawal. This would entail proper public funding for such challenges. (shrink)
The question a judge has to ask in deciding whether or not life-sustaining treatment should be withdrawn is whether the continued treatment is lawful. It will be lawful if it is in the patient’s best interests. Identifying this question gives no guidance about how to approach the assessment of best interests. It merely identifies the judge’s job. The presumption in favour of the maintenance of life is part of the job that follows the identification of the question.The presumption is best (...) regarded as a presumption of law. It has long been recognised as part of the way in which the English law discharges its obligations under Article 2 of the European Convention on Human Rights. But even if it is a ‘mere’ evidential presumption it cannot, on the facts of most cases involving applications for the withdrawal of life-sustaining treatment from patients in prolonged disorders of consciousness, be rebutted. (shrink)
Conducting large multi-site research within universities highlights inconsistencies between universities in approaches, requirements and responses of research ethics committees. Within the context of a social science research study, we attempted to obtain ethical approval from 101 universities across England to recruit students for a short online survey. We received varied responses from research ethics committees of different universities with the steps to obtaining ethics approval ranging from those that only required proof of approval from our home institution, to universities that (...) facilitated fast-track applications to those that required a full ethics review. Some universities also completely refused. After contacting all 101 universities in England, 60 universities gave clearance to our study. In this article, we present the different approaches universities adopted in response to our application to sample from students in their institution. We consider a number of conceptual and ethical issues pertinent to considering ethics approval for researchers from other universities in England and critically discuss three possible models of ethics governance that would cover all universities in England. (shrink)
Property-based models of the ownership of body parts are common. They are inadequate. They fail to deal satisfactorily with many important problems, and even when they do work, they rely on ideas that have to be derived from deeper, usually unacknowledged principles. This article proposes that the parent principle is always human dignity, and that one will get more satisfactory answers if one interrogates the older, wiser parent instead of the younger, callow offspring. But human dignity has a credibility problem. (...) It is often seen as hopelessly amorphous or incurably theological. These accusations are often just. But a more thorough exegesis exculpates dignity and gives it its proper place at the fountainhead of bioethics. Dignity is objective human thriving. Thriving considerations can and should be applied to dead people as well as live ones. To use dignity properly, the unit of bioethical analysis needs to be the whole transaction rather than the doctor-patient relationship. The dignity interests of all the stakeholders are assessed in a sort of utilitarianism. Its use in relation to body part ownership is demonstrated. Article 8 of the European Convention of Human Rights endorses and mandates this approach. (shrink)
Using data obtained during a retrospective interview study of 30 women who had undergone genetic testing—BRCA1/2 mutation searching—this paper describes how women, previously diagnosed with breast/ovarian cancer, perceive their role in generating genetic information about themselves and their families. It observes that when describing their motivations for undergoing DNA testing and their experiences of disclosing genetic information within the family these women provide care based ethical justifications for their actions. Finally, it argues that generating genetic information and disclosing this information (...) to kin raise different types of ethical issues. The implications of these findings for ethical debates about informed choice in the context of genetic testing are discussed. (shrink)
This article reflects on the problem of false belief produced by the integrated psychological and algorithmic landscape humans now inhabit. Following the work of scholars such as Lee McIntyre (Post-Truth, MIT Press, 2018) or Cailin O’Connor and James Weatherall (The Misinformation Age: How False Beliefs Spread, Yale University Press, 2019) it combines recent discussions of fake news, post-truth, and science denialism across the disciplines of political science, computer science, sociology, psychology, and the history and philosophy of science that variously address (...) the ineffectiveness, in a digital era, of countering individual falsehoods with facts. Truth and falsehood, it argues, rather than being seen as properties or conditions attached to individual instances of content, should now be seen as collective, performative, and above all persuasive phenomena. They should be practically evaluated as networked systems and mechanisms of sharing in which individually targeted actions are combining with structural tendencies (both human and mechanical) in unprecedented ways. For example, the persuasive agency of apparent consensus (clicks, likes, bots, trolls) is newly important in a fractured environment that only appears to be, but is no longer ‘public’; the control of narratives, labels, and associations is a live, time-sensitive issue, a continuous contest, or ongoing cusp. Taking a social approach to truth yields observations of new relevance; from how current strategies of negative cohesion, blame, and enemy-creation depend crucially on binary ways of constructing the world, to how the offer of identity/community powerfully cooperates with the structural tendencies of algorithm-driven advertiser platforms towards polarisation. Remedies for these machine-learned and psychological tendencies lie in end-user education. So the Arts and Humanities, whether via comparisons with previous historical periods, or via principles of critical thinking and active reading, offer crucial resources to help counter what since 1997 silicon valley executives and scholars have called ‘persuasive technology’ (Fogg in Persuasive Technology: Using Computers to Change What we Think and Do, Morgan Kaufmann, 2003; Hamari et al. (eds) in Persuasive Technology, Springer International Publishing, 2014; Harris in How a Handful of Tech Companies Control Billions of Minds Every Day, 2017; Lanier in Who Owns the Future? Simon & Schuster, 2014 and Ten Arguments for Deleting your Social Media Accounts Right Now, Picador, 2019). The article proposes a paradigm shift in public understandings of this new social environment: from a culture of discovery, where what matters is what exists or is in fact the case, to a culture of iteration, where what matters is what gets repeated. (shrink)
Rosamond Rhodes contends, by reference to seven examples, that medical ethics is distinctly different from non-medical ethics. Each of those examples, on proper examination, illustrates precisely the opposite contention. It is clear not only that medical ethics relies on the same principles as non-medical ethics, but that it should so rely. A distinctively medical ethics would be dangerous: it would divorce ethical medical decision-making from the patients whom medicine exists to serve.
This article explores some of the implications of understanding sin as failure of perception. The theological underpinning of the argument is the choice made in the Garden of Eden to eat the fruit of the tree of knowledge rather than the fruit of the tree of life, or wisdom. This has led to distorted perception, in which all things are seen as having separate, independent existences rather than joined together by their common divine source and their deep interrelatedness in the (...) covenant made with God. The article discusses the fascination with the principle of respect for autonomy in the light of this theology. It also looks at perceptions of the HIV/AIDS crisis in Africa. It finishes with a definition of repentance that makes right perception possible. (shrink)
Technologic advances mean automated, wearable cameras are now feasible for investigating health behaviors in a public health context. This paper attempts to identify and discuss the ethical implications of such research, in relation to existing guidelines for ethical research in traditional visual methodologies. Research using automated, wearable cameras can be very intrusive, generating unprecedented levels of image data, some of it potentially unflattering or unwanted. Participants and third parties they encounter may feel uncomfortable or that their privacy has been affected (...) negatively. This paper attempts to formalize the protection of all according to best ethical principles through the development of an ethical framework. Respect for autonomy, through appropriate approaches to informed consent and adequate privacy and confidentiality controls, allows for ethical research, which has the potential to confer substantial benefits on the field of health behavior research. (shrink)
The law tends to think that there is no difficulty about identifying humans. When someone is born, her name is entered into a statutory register. She is ‘X’ in the eyes of the law. At some point, ‘X’ will die and her name will be recorded in another register. If anyone suggested that the second X was not the same as the first, the suggestion would be met with bewilderment. During X's lifetime, the civil law assumed that the X who (...) entered into a contract was the same person who breached it. The criminal law assumed that X, at the age of 80, was liable for criminal offences ‘she’ committed at the age of 18. This accords with the way we talk. ‘She's not herself today’, we say; or ‘When he killed his wife he wasn't in his right mind’. The intuition has high authority: ‘To thine own self be true’, urged Polonius.1 It sounds as if we believe in souls—immutable, core essences that constitute our real selves. Medicine conspires in the belief. If you become mentally ill, a psychiatrist will seek to get you back to your right mind. The Mental Capacity Act 1985 states that when a patient loses capacity the only lawful interventions will be interventions which are in that patient's best interests,2 and that in determining what those interests are the decision-maker must have …. (shrink)
A symposium was held at the Centre for Research in the Arts, Social Sciences and Humanities at the University of Cambridge on June 12th 2019, ‘Rethinking Repetition in a Digital Age’, at which Geoff Stead, a leading mobile tech designer, was a keynote speaker. The focus of the Cambridge UK event was on how the potentials of digital technologies—whose harms have received widespread attention—could be redirected for the social good. For Stead, this is precisely what Babbel are doing in their (...) approach to commercial digital language learning. Stead spoke to the idea of reversing our personal relationships to mechanical affordances, and finding empowerment in understanding their designed logics. The transcript of the interview below, made in October 2021, revisits some of the main points he raised at that event. (shrink)
This book is an assault on the notion that it is empirically accurate and legally and philosophically satisfactory to see humans as atomistic entities. It contends that our welfare is inextricably entangled with that of others, and accordingly law and ethics, in determining our best interests, should recognise the central importance of relationality, the performance of obligations, and (even apparently injurious) altruism.
We are very grateful to Richard Ashcroft1 and Andrew McGee2 for their thoughtful and articulate criticisms of our views.3 Ashcroft has disappointingly low aspirations for the law. Of course he is right to say that the law is not a ‘self-sufficient, integrated and self-interpreting system of doctrine’. The law is often philosophically incoherent and internally contradictory. But it does not follow from this that all areas of the law are philosophically unsatisfactory. And if that were true, the response should not (...) be Ashcroft’s contemptuous despair, but a determination to make it better. Ashcroft would say that such idealism is unrealistic in the light of the very nature of ‘the Law’: ‘…a complex assemblage of institutions, rules, accredited persons, practices and systems’. That isa radically ‘legal realist’ position and is plainly unsustainable. We can demonstrate its unsustainability while demonstrating both that he is wrong to tar all areas of the law with the same brush and wrong to deny that medical ethics are ‘intellectually and metaphysically prior to medical law’. Take the law of murder which, of course, is part of ‘medical law’. It is surely trite to observe that humans thought that killing people was wrong before they started penalising murder. Ethics generated the law. There is nothing elusive or incoherent about the philosophical foundations of the law of murder. Human life is thought to matter. To kill is both to cause a harm and to commit a wrong. There is more than something of the straw man in Ashcroft’s elaboration of his argument. For he chooses, of all things, autonomy and, in particular, its invocation in the law of consent. Lawyers’ eyebrows will rise at his assertion that ‘while the concept of “autonomy” has an explanatory role in discussions of the …. (shrink)
We are very grateful to Richard Ashcroft 1 and Andrew McGee 2 for their thoughtful and articulate criticisms of our views. 3 Ashcroft has disappointingly low aspirations for the law. Of course he is right to say that the law is not a ‘self-sufficient, integrated and self-interpreting system of doctrine’. The law is often philosophically incoherent and internally contradictory. But it does not follow from this that all areas of the law are philosophically unsatisfactory. And if that were true, the (...) response should not be Ashcroft’s contemptuous despair, but a determination to make it better. Ashcroft would say that such idealism is unrealistic in the light of the very nature of ‘the Law’: ‘...a complex assemblage of institutions, rules, accredited persons, practices and systems’. That isa radically ‘legal realist’ position and is plainly unsustainable. We can demonstrate its unsustainability while demonstrating both that he is wrong... (shrink)
The law tends to think that there is no difficulty about identifying humans. When someone is born, her name is entered into a statutory register. She is ‘X’ in the eyes of the law. At some point, ‘X’ will die and her name will be recorded in another register. If anyone suggested that the second X was not the same as the first, the suggestion would be met with bewilderment. During X's lifetime, the civil law assumed that the X who (...) entered into a contract was the same person who breached it. The criminal law assumed that X, at the age of 80, was liable for criminal offences ‘she’ committed at the age of 18. This accords with the way we talk. ‘She's not herself today’, we say; or ‘When he killed his wife he wasn't in his right mind’. The intuition has high authority: ‘To thine own self... (shrink)
The idea of the Good Life – of what constitutes human thriving, is, implicitly, the foundation and justification of the law. The law exists to hold societies together; to hold in tension the rights of individuals as against individuals, the rights of individuals as against various types of non-humans such as corporations, and the rights of individuals individuals as against the state. In democratic states, laws inhibit some freedoms in the name of greater, or more desirable freedoms. The only justification (...) for law is surely that it tends to promote human thriving. But what is the Good Life? What does it mean to live a thriving life? There has been no want of discussion, at least since the great Athenians. But surprisingly, since human thriving is its sole raison d’etre, the law has been slow to contribute to the conversation. This book aims to start and facilitate this conversation. It aims to: -make lawyers ask: ‘What is the law for?’, and conclude that it is to maximise human thriving -make lawyers ask: ‘But what does human thriving mean?’ -make judges and advocates ask: ‘How can a judgment about the best interests of a patient be satisfactory unless its basis is made clear?’. (shrink)
The “doctrine of double effect” has a pleasing ring to it. It is regarded by some as the cornerstone of any sound approach to end-of-life issues and by others as religious mumbo jumbo. Discussions about “the doctrine” often generate more heat than light. They are often conducted at cross-purposes and laced with footnotes from Leviticus.
There is a strong presumption in favour of the maintenance of life. Given sufficient evidence, it can be rebutted. But the epistemic uncertainties about the best interests of patients in prolonged disorders of consciousness and the wishes that they should be presumed to have are such that, in most PDOC cases, the presumption cannot be rebutted. It is conventional and wrong to assume that PDOC patients have no interest in continued existence. Treatment withdrawal/continuation decisions should focus on the patient as (...) he or she actually is, and should not unjustifiably assume that the premorbid patient continues to exist unchanged, and that the actual patient has the same interests as the premorbid patient and would make the same decisions in relation to treatment as the premorbid patient would have done. (shrink)
This paper contends that the conventional ethical and legal ways of analysing the wrong involved in the misuse of human body parts are inadequate, and should be replaced with an analysis based on human dignity. It examines the various ways in which dignity has been understood, outlines many of the criticisms made of those ways , and proposes a new way of seeing dignity which is exegetically consonant with the way in which dignity has been historically understood, and yet avoids (...) the pitfalls which have led to dignity being dismissed by many as hopelessly amorphous or incurably theological. The account of dignity proposed is broadly Aristotelian. It defines dignity in terms of human thriving, and presupposes that it is possible, at least in principle, to determine empirically what makes humans thrive. It contends that humans are quintessentially relational animals, and that it is not possible to define humans as atomistic entities. One important corollary of this is that when using dignity/thriving as a criterion for determining the ethical acceptability of a proposed action or inaction, one should ask not merely how the dignity interests of the patient would be affected, but how the dignity interests of all stakeholders would be affected. The business of ethics is then the business of auditing all those interests, and determining the course of action which would maximise the amount of thriving in the world. (shrink)
Multinational companies commonly and increasingly undertake their research in low and middle-income countries through commercial clinical research organizations (CROs). The involvement of these scientific middle men complicates the application of the theories of justice. We examine those complexities, and conclude that while the difficulties are not immune to analysis in terms of these theories, the theories have to be deployed in new ways in order to be useful in the new commercial world.
In a profile in the November, 2012 issue of the magazine Architect, activist-architect Raphael Sperry, a founder of the group Architects Planners & Designers for Social Responsibility discussed his petition to amend the AIA’s Code of Ethics and Professional Conduct to include a prohibition on “the design of spaces intended for long-term solitary isolation and execution.”1 This issue is both serious and timely. It deserves contemplative attention before any action is taken. The purpose of this letter is to provide the (...) the architecture profession a condensed analysis of the possible justification for taking the action Mr. Sperry advocates. After review and consideration, we are persuaded that Mr. Sperry’s proposal does merit action by the AIA. (shrink)
Medical Ethics, Law and Communication at a Glance presents a succinct overview of these key areas of the medical curriculum. This new title aims to provide a concise summary of the three core, interlinked topics essential to resolving ethical dilemmas in medicine and avoiding medico-legal action. Divided into two sections; the first examines the ethical and legal principles underpinning each medical topic; while the second focuses on communication skills and the importance of good communication. Medical Ethics, Law and Communication at (...) a Glance offers an accessible introduction to the fundamentals of good medical practice, and will provide indispensable support for undergraduate medical students and nurses, as well as newly qualified healthcare professionals. (shrink)
If the law is to regulate the lives of those who suffer from depression, it is vital that lawyers understand the condition. This edited collection outlines the questions that arise from cases of depression by drawing together viewpoints from lawyers, philosophers, clinicians, and first-hand accounts from sufferers.
This book is an examination of how the law understands human identity and the whole notion of 'human being'. On these two notions the law, usually unconsciously, builds the superstructure of 'human rights'. It explores how the law understands the concept of a human being, and hence a person who is entitled to human rights. This involves a discussion of the legal treatment of those of so-called "marginal personhood" (e.g. high functioning non-human animals; humans of limited intellectual capacity, and fetuses). (...) It also considers how we understand our identity as people, and hence how we fall into different legal categories: such as gender, religion and so on. The law makes a number of huge assumptions about some fundamental issues of human identity and authenticity - for instance that we can talk meaningfully about the entity that we call 'our self'. Until now it has rarely, if ever, identified those assumptions, let alone interrogated them. This failure has led to the law being philosophically dubious and sometimes demonstrably unfit for purpose. Its failure is increasingly hard to cover up. What should happen legally, for instance, when a disease such as dementia eliminates or radically transforms all the characteristics that most people regard as foundational to the 'self'? This book seeks to plug these gaps in the literature. (shrink)