Autonomy is a concept that holds much appeal to social and legal philosophers. Within a medical context, it is often argued that it should be afforded supremacy over other concepts and interests. When respect for autonomy merely requires non-intervention, an adult’s right to refuse treatment is held at law to be absolute. This apparently simple statement of principle does not hold true in practice. This is in part because an individual must be found to be competent to make a valid (...) refusal of consent to medical treatment, and capacity to decide is not an absolute concept. But further to this, I argue that there are three relevant understandings of autonomy within our society, and each can demand in differing cases that different courses of action be followed. Judges, perhaps inadvertently, have been able to take advantage of the equivocal nature of the concept to come tacitly to decisions that reflect their own moral judgments of patients or decisions made in particular cases. The result is the inconsistent application of principle. I ask whether this is an unforeseen outcome or if it reflects a wilful disregard for equal treatment in favour of silent moral judgments in legal cases. Whatever the cause, I suggest that once this practice is seen to occur, acceptable justification of it in some cases is difficult to find. (shrink)
The question of if, and under what conditions transsexuals should be allowed to participate in sports in their acquired sex is becoming increasingly relevant partly because the number of transsexuals is increasing partly because many countries now provide mechanisms for achieving legal recognition as belonging to the new acquired sex. This paper develops (1) an analysis of the justification for maintaining sex segregation in some sports and (2) an account of the rights of transsexuals to be recognised in their new (...) sex. On the basis of these two analyses it critically evaluates two set of rules for the participation of transsexuals in elite sports: the UK guidelines issued in pursuance of the Gender Recognition Act 2004 and the International Olympic Committee's guidelines. It is argued that these guidelines are conflicting and that a modified set of criteria is more justifiable. (shrink)
This paper questions the relevance of distinguishing acts and omissions in moral argument. It responds to an article by McLachlan, published in this issue of the Journal of Medical Ethics .1 I argue that McLachlan fails to establish that there is a moral difference between active and passive euthanasia and that he instead merely asserts that the difference exists. I suggest that McLachlan’s paper relies on a false commitment to general rules that do not apply in every case. Furthermore, I (...) question the lack of a moral framework provided in his argument. Finally, I briefly argue why some omissions may well be considered equivalent to some actions. I conclude that until McLachlan demonstrates that it would be wrong, we should focus on agency and responsibility, rather than seek to derive normative conclusions from contrasts between active and passive causes.In bioethical debates relating to euthanasia and associated end-of-life issues, commentators dispute the relevance of distinctions between so-called active and passive euthanasia. As a general means of assisting analysts in their studies of different practices, a taxonomy that distinguishes active and passive euthanasia can be useful, principally as we can not usefully argue about these matters unless we are clear about what our arguments touch upon.2 Although it seems to have become received wisdom from ethicists of quite conflicting views that moral propriety can not hang merely on whether a situation obtains because of an agent’s action or inaction, there continue to be defences of the act/omission distinction.3 4 In his paper,1 McLachlan has attempted to add support to those who argue that the distinction between active and passive euthanasia is a moral one. Here I respond to McLachlan’s paper, arguing that in it he fails to do more …. (shrink)
It was only a matter of time before the portmanteau term “genethics” would be coined and a whole field within bioethics delineated. The term can be dated back at least to 1984 and the work of James Nagle, who claims credit for inventing the word, which he takes “to incorporate the various ethical implications and dilemmas generated by genetic engineering with the technologies and applications that directly or indirectly affect the human species.” In Nagle’s phrase, “Genethic issues are instances where (...) medical genetics and biotechnology generate ethical problems that warrant societal deliberation.” The great promises and terrific threats of developments in scientific understanding of genetics, and the power to enhance, modify, or profit from the knowledge science breeds, naturally offer a huge range of issues to vex moral philosophers and social theorists. Issues as diverse as embryo selection and the quest for immortality continue to tax analysts, who offer reasons as varied as the matters that might be dubbed “genethical” for or against the morality of things that are actually possible, logically possible, and even just tenuously probable science fiction. (shrink)
This paper examines questions concerning elective ventilation, contextualised within English law and policy. It presents the general debate with reference both to the Exeter Protocol on elective ventilation, and the considerable developments in legal principle since the time that that protocol was declared to be unlawful. I distinguish different aspects of what might be labelled elective ventilation policies under the following four headings: ‘basic elective ventilation’; ‘epistemically complex elective ventilation’; ‘practically complex elective ventilation’; and ‘epistemically and practically complex elective ventilation’. (...) I give a legal analysis of each. In concluding remarks on their potential practical viability, I emphasise the importance not just of ascertaining the legal and ethical acceptability of these and other forms of elective ventilation, but also of assessing their professional and political acceptability. This importance relates both to the successful implementation of the individual practices, and to guarding against possible harmful effects in the wider efforts to increase the rates of posthumous organ donation. (shrink)
This article provides a critical analysis of ‘the legal’ in the legal determinants of health, with reference to the Lancet–O’Neill report on that topic. The analysis shows how law is framed as a fluid and porous concept, with legal measures and instruments being conceived as sociopolitical phenomena. I argue that the way that laws are grounded practically as part of a broader concept of politics and evaluated normatively for their instrumental value has important implications for the study of law itself. (...) This, in turn, has implications for how we approach the transdisciplinary ambitions that form a key part of the report’s recommendations to enhance law’s capacity to promote better, more equitable population health at local, national, international and global levels. (shrink)
The focus of this paper is public health law and ethics, and the analytic framework advanced in the report Public health: ethical issues by the Nuffield Council on Bioethics. The author criticises the perceived problems found with liberal models associated with Millian political philosophy and questions the Report’s attempt to add to such theoretical frameworks. The author suggests a stronger theoretical account that the Council could have adopted—that advanced in the works of Joseph Raz—which would have been more appropriate. Instead (...) of seeking to justify overruling the legitimate interests of individuals in favour of society, this account holds that the interests are necessarily interwoven and thus such a conflict does not exist. It is based on an objective moral account and does not require an excessive commitment to individuals’ entitlements. (shrink)
In the previous issue of Health Care Analysis, Dr. Andrew Edgar wrote an editorial to round off his 8 years as editor of the journal. His commitment to the journal has provided a remarkable contribution to a range of fields of inquiry that focus on the relationships between health care, policy, practice, and philosophy. As Dr. Edgar indicates, under his stewardship, the journal has published papers addressing both long-standing and novel debates. As he notes, furthermore, his editorial approach has afforded (...) a platform not only for established scholars, but also scholars at the start of their careers. Indeed, when I was amongst that latter category, I was a fortunate and grateful beneficiary of Dr. Edgar’s thoughtful, patient, and generous editorial guidance, and can attest first hand to the important influence he has had in mentoring many of us working in the field, as well as on our scholarship itself.As I now move to the position of editor, I would like here to reflect on my own out. (shrink)
This article provides an understanding and defence of ‘best interests’. The analysis is performed in the context of, and is informed by, English law. The understanding that develops allows for differences in values, and is thus argued to be appropriate in a pluralist liberal system. When understood properly, it is argued, best interests provides the best means of decision-making for people deemed incompetent to decide for themselves. It is accepted that some commentators are cynical of best interests in practice. Following (...) an assessment of some of their principal concerns, it is suggested that best interests in fact provides a construct that is both defensible and desirable. (shrink)
A large tranche of contemporary bioethical inquiry is self-consciously focused on purpose and methodology. Bioethics is a field of disparate disciplines, and it is not always clear what role the philosopher plays in the wider scheme. Even when philosophical reflections can, in principle, find application in the real world , there can be difficulty in finding sound resolution between the competing perspectives. Where fundamentals differ, we face apparent deadlock, with theorists seemingly able only to talk across each other. Perspectives on (...) this vary. For example, some will argue that the philosopher’s role is purely reflective and need have no practical resonance whatsoever. Others may say that philosophers are not equipped to engage with empirical questions or, when they do, they do so on flawed understandings of “the real world”; bad science or science fiction replaces brute fact and emotional, social, and empirical reality. Some may seek to strike a balance by trying to engage the questions within a political framing, allowing both for normative and real-world concerns. (shrink)
Recent Developments Content Type Journal Article DOI 10.1007/s11673-010-9235-5 Authors John Coggon, University of Manchester Centre for Social Ethics and Policy, Institute for Science, Ethics, and Innovation, School of Law Manchester UK Cameron Stewart, University of Sydney Centre for Health Governance, Law and Ethics, Sydney Law School Sydney NSW 2006 Australia Journal Journal of Bioethical Inquiry Online ISSN 1872-4353 Print ISSN 1176-7529 Journal Volume Volume 7 Journal Issue Volume 7, Number 2.
Recently, Bonnie Steinbock has argued that there is still not a convincing case to support the legalisation of doctor-assisted suicide.1 The argument is framed in consequentialist terms: rather than contend that there is something intrinsically wrong with mercy killing itself, caution is recommended because of the risk that a system may be open to sufficient abuse to warrant its non-implementation. A welcome criticism is made of partisanship that obstructs useful progress in the debate, which she suggests should be based on (...) objective, empirical evidence on both the need for, and the risks associated with, legalised doctor-assisted suicide.1 The main presumption underlying Professor Steinbock’s argument is that a proportionately large number of people would become vulnerable to great and unacceptable harm under a regime that was not strictly regulated. She asserts certain values, which, on a consequentialist calculation, support her conclusion that currently the case for legalisation is not made.Here I would like to question how useful objective, empirical data can be. Although data that show some assertions to be objectively right or wrong may be obtained and are doubtless valuable, I will show that the debate on assisted suicide is unavoidably partisan and that the protagonists will therefore receive data differently, necessarily because of their moral and philosophical convictions. Steinbock would like the question of legalisation to “turn on objective, empirical evidence about both the need for PAS [physician-assisted suicide] and the risk of mistake and abuse.”1 But to be understood, the concepts of “need” and “abuse” require pre-existing value judgements. Furthermore, even if the values of these concepts are quantifiable, they are probably parts of distinct metrics, so offsetting one against the other will become a matter of qualitative assessment. This does not entirely disvalue the use of objective data, but it means that the …. (shrink)
In this paper, the ethical and legal issues raised by the deactivation of implantable cardioverter-defibrillators in patients with terminal cancer is considered. It is argued that the ICD cannot be well described either as a treatment or as a non-treatment option, and thus raises complex questions regarding how rules governing deactivation should be framed. A new category called “integral devices” is proposed. Integral devices require their own special rules, reflecting their position as a “halfway house” between a form of treatment (...) and a part of the body. The practical problems faced by doctors working in palliative medicine with regard to the deactivation of ICDs are also considered. (shrink)
As late as 1870 a Toronto professor, William Hincks, schooled pupils in a circular system of classification. Although his system was derived from Macleay's quinarianism of the 1820s, Hincks had altered it in several ways, influenced by botanical morphology. He persistently promoted it throughout the 1860s as an alternative to Darwinian evolution.
The central role of Health Care Analysis is to advance discourses between philosophy, health, and policy. Within that very wide-ranging agenda, perhaps the most complex challenges are in global health. In countries across the world, many, many populations are unable to enjoy conditions in which they can be healthy. The barriers to change are political, economic, social, regulatory, legal, and philosophical. Lawrence Gostin’s recent book on Global Health Law therefore marks a contribution of the highest importance, marrying practical and philosophical (...) agendas, and aiming at achieving global health with justice. -/- To progress the important work of Gostin’s book, the current journal issue draws together leading scholars in moral and political philosophy, economics, and law, with a shared interest in questions of global justice. In the first paper, Eric Friedman and Lawrence Gostin provide a clear overview of the practical and theoretical global health challenges and their response to these. Their analysis is followed by stimulating contributions from Norman Daniels, Jennifer Prah Ruger, Shawn Harmon, Attiya Waris and Laila Abdul Latif, Heather Widdows, and A.M. Viens, each engaging with questions raised by Global Health Law. The different papers underscore the significance of this area of inquiry, and the imperative to bring insights from scholarly work into global health practice. (shrink)
The goal of improving public health involves the use of different tools, with the law being one way to influence the activities of institutions and individuals. Of the regulatory mechanisms afforded by law to achieve this end, criminal law remains a perennial mechanism to delimit the scope of individual and group conduct. However, criminal law may promote or hinder public health goals, and its use raises a number of complex questions that merit exploration. This examination of the interface between criminal (...) law and public health brings together international experts from a variety of disciplines, including law, criminology, public health, philosophy and health policy, in order to examine the theoretical and practical implications of using criminal law to improve public health. (shrink)
Critical literatures, and public discourses, on public health policies and practices often present fixated concerns with paternalism. In this paper, rather than focus on the question of whether and why intended instances of paternalistic policy might be justified, we look to the wider, real-world socio-political contexts against which normative evaluations of public health must take place. We explain how evaluative critiques of public health policy and practice must be sensitive to the nuance and complexity of policy contexts. This includes sensitivity (...) to the ‘imperfect’ reach and application of policy, leading to collateral effects including collateral paternalism. We argue that theoretical critiques must temper their demandingness to real-world applicability, allowing for the detail of social and policy contexts, including harm reduction: apparent knock-down objections of paternalism cannot hold if they are limited to an abstract or artificially-isolated evaluation of the reach of a public health intervention. (shrink)
This article introduces a special issue on the legal determinants of health, following the publication of the Lancet–O’Neill Institute of Georgetown University Commission’s report on the subject. We contextualize legal determinants as a significant and vital aspect of the social determinants of health, explain the work of the Lancet–O’Neill Commission and outline where consequent research will usefully be directed. We also introduce the papers that follow in the special issue, which together set out in greater detail the work of the (...) Commission and critically engage with different aspects of the report and the application of its findings and recommendations. (shrink)
This is a short postscript to the Public Health Ethics special issue on the legal determinants of health. We reflect briefly on emerging responses to COVID-19, and raise important questions of ethics and law that must be addressed; including through the lens of legal determinants, and with critical attention to what it means to protect health with justice.
Any case raising the profile of ‘assisted-dying’ and public policy naturally causes consternation, excitement, heated debate and concerns from different parties, worried that the law is unclear, unfair, too conservative, too permissive, neglectful of ‘the vulnerable’ or indifferent to the proper scope of freedom for ‘the competent’. It was unsurprising, then, that much attention focused on the litigation between Debbie Purdy and the Director of Public Prosecutions .1–4 Ms Purdy has muscular sclerosis, and would like to be free, at a (...) time of her choosing, to travel to receive assisted suicide in a jurisdiction that permits this. To do so, she will need the help of her husband. In contrast with the famous Pretty case,5 Ms Purdy did not seek a proleptic immunity from prosecution under the Suicide Act 1961. Rather, she invoked her human right to respect for private and family life, and argued that the DPP should publish guidance detailing the basis on which he exercises his discretion to bring a prosecution for the crime of aiding, abetting, counselling or procuring a suicide in England and Wales. Her case, when heard in the House of Lords, was successful. 3A decision to prosecute cases of assisted suicide pivots on the satisfaction of two key issues: the ‘evidential test’—is there sufficient evidence to justify bringing a prosecution?; and the ‘public interest test’—is it in the public interest to bring a prosecution? Rightly or wrongly, the threshold for meeting the evidential test seems to be set very low.6 Focus tends to fall, therefore, on the public interest aspect of the decision. In September 2009, the DPP published interim guidance, which detailed the offence of ‘assisting a …. (shrink)
In their book Debating Euthanasia, Emily Jackson and John Keown present respectively arguments in favour of and against the legalization of (some instances of) euthanasia and assisted suicide. Jackson advances a case based on a principled commitment to a secular, liberal legal system, arguing that obligations rooted in compassion require the careful development of laws to permit assisted dying. Keown defends the status quo, arguing that the law ought to sustain a prohibition against assisted dying, both out of a principled (...) commitment to the inviolability of life doctrine, and because satisfactory regulation will be impossible to draft. I question the strength of each author’s essay. Jackson, I argue, does not take sufficiently seriously the plausibility of secular moral objections to assisted dying. Keown, meanwhile, overstates the inviolability principle’s place in English law. Focusing particularly on Keown’s essay, I go on to consider the approach taken to ‘debating euthanasia’, and suggest that it betrays more about the direction of the public debate, and the fragility of ‘the case against’, than he would perhaps wish. (shrink)
John Coggon argues that the important question for analysts in the fields of public health law and ethics is 'what makes health public?' He offers a conceptual and analytic scrutiny of the salient issues raised by this question, outlines the concepts entailed in, or denoted by, the term 'public health' and argues why and how normative analyses in public health are inquiries in political theory. The arguments expose and explain the political claims inherent in key works in public health ethics. (...) Coggon then develops and defends a particular understanding of political liberalism, describing its implications for critical study of public health policies and practices. Covering important works from legal, moral, and political theory, public health, public health law and ethics, and bioethics, this is a foundational text for scholars, practitioners and policy bodies interested in freedoms, rights and responsibilities relating to health. (shrink)
The literature on euthanasia and suicide is substantial and ever growing. In his book Aiming to kill, Nigel Biggar, a theologian, adds to this something that is hard to come across, in a concise but comprehensive form. His book explores the theological basis of the sanctity of life doctrine: rather than merely asserting what the doctrine demands, simply citing as authority that it is a traditional and fundamental principle, he offers an account of its historical and modern-day rationale.The book is (...) divided into four unequal parts, whose quality varies. These chapters are designed to provide: firstly, the appropriate sociolegal and ethical context; secondly, an overview and analysis of arguments relating to the value of life; thirdly, an overview and analysis of arguments on the morality of killing; and finally, a section drawn from the conclusions of previous chapters and expounding the threat of the “slippery slope”.Biggar does not claim to come into the debate without …. (shrink)
Death’s Dominion is Simon Woods’ addition to the excellent and thought-provoking Facing Death series. Its timeliness is hardly at issue: the debate on euthanasia, end-of-life care and associated issues looks set to rage for some time. And it comes out at a time when the UK Parliament is debating a palliative care bill, designed to promote a duty of the state to provide palliative care to all who need it. The real concern with a work in this area is knowing (...) whether it is worth reading. I think it is. Relatively few are the texts that deal with palliative care, and fewer still are those that deal with it in such a careful and comprehensive manner. No thorough analysis of issues regarding the roles of the state and health care in individuals’ end-of-life decision-making can afford to ignore the specialty, yet it is often left unmentioned. For anyone who wishes to know about it and to see it in a clear social and ethical context, this book will prove highly valuable.The book is logically structured, consisting of eight chapters. Although these lead clearly from one …. (shrink)