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Law and the demoralisation of medicine

Published online by Cambridge University Press:  02 January 2018

Jonathan Montgomery
Jonathan Montgomery*
Affiliation:
School of Law, University of Southampton
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Abstract

In his Dimbleby Lecture in December 2002, the Archbishop of Canterbury examined the effect of the emergence of the market state on the legitimacy of government activity in areas of morality. He suggested that, while this is becoming limited, the continuing need to provide a moral context for social life provided an opportunity for religious communities to play a crucial role. This paper suggests that the increasing significance of market concepts in healthcare law poses a similar challenge to the moral basis of medical practice, threatening to drive moral argument outside the scope of the discipline, with the consequent effect of undermining the values that drive good healthcare. Thus, the de-moralisation of medicine is also demoralising for those within the health professions. To counteract this tendency, a strong sense of a common moral community needs to be maintained amongst those engaged with the discipline of healthcare law. This paper also examines the role of law in this area. Traditionally, legal scholars have attacked the reluctance of legislators and the judiciary to wrestle from the grip of doctors the authority to determine ethical issues. The dominant view has been that this was a failure to recognise the fact that society has a stake in these matters and that legal non-intervention was an abdication of responsibility that undermines the rule of law. However, the integration of medical and moral decision making into a collaborative enterprise can also be seen as a more effective defence against the forces of demoralisation than the separation that the orthodox approach implies. If this is correct, then a key task for healthcare lawyers, as yet undeveloped, is to consider how to establish a legitimate common moral community, and what role the law might have to play in that process.

Type
Research Article
Information
Legal Studies , Volume 26 , Issue 2 , June 2006 , pp. 185 - 210
Copyright
Copyright © Society of Legal Scholars 2006

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References

1. The text of the speech can be downloaded from the website available at http://www.archbishopofcanterbury.org.

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8. See Alderson, P and Montgomery, J Health Care Choices: Making Decisions with Children (London: Institute for Public Policy Research, 1996) pp 18–20 Google Scholar for a discussion of the value of autonomy in the construction of healthcare law.

9. Consider, for example, JS Mill’s account of the importance of liberty in On Liberty (London: Dent, 1972).

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14. Quoted in Alderson and Montgomery, above n 8, p 45.

15. Re T (Adult: Refusal of Medical Treatment) (1992) 9 BMLR 46 at 61.

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20. The metaphor is drawn from the phenomenon sometimes reported in the Christian religious tradition where the wounds received by Christ on the cross appear on the bodies of believers, seen as the external manifestation of an ecstatic religious experience.

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22. Lee and Morgan, above n 18, at 298 fn 6.

23. Gillick v West Norfolk Area Health Authority [1985] 3 All ER 402.

24. See Alderson and Montgomery, above n 8.

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31. These issues were debated in Parliament in consideration of the Human Tissue Act 2004.

32. Deceased Fathers Act 2003.

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42. At para 19. It should be noted that this was the account given by Mrs Watts’ daughter, but that no medical evidence was filed to this effect from the French doctors because they declined to accept Mrs Watts as a patient once they were asked to supply information for court purposes; see para 20.

43. At para 43, after reviewing R v Cambridge Health Authority, ex p B [1995] 2 All ER 129 and R v North West Lancashire Health Authority, ex p A [2000] 1 WLR 977.

44. I have explored these issues in Montgomery, J The impact of European Union law on English health care law’ in Dougan, M and Spavanta, E (eds) Social Welfare and EU Law (Oxford: Hart Publishing, 2005)Google Scholar.

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46. The current form of Art 22(1) was inserted by Council Regulation 2793/81 of 17 September 1981 amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community and Regulation (EEC) No 574/72 fixing the procedure for implementing Regulation (EEC) No 1408/71 ([1981] OJ L275/1).

47. One of the preambles to the Regulation indicates that this extension was seen as a necessary improvement gained from experience in implementing the original Regulation. See the Court of Appeal’s comments in R (Watts) v Secretary of State for Health [2004] EWCA Civ 166, (2004) 77 BMLR 26 at para 36.

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50. [2002] QB 409.

51. Case C-385/99, [2003] ECR I-4509.

52. At para 97.

53. At para 34; cited in Watts at para 113.

54. At paras 44 and 46; cited in Watts at para 114.

55. These arguments are reviewed in Watts at para 102.

56. For an earlier discussion of the risks of ‘rights’ in this respect, see J Montgomery ‘Patients first: the role of rights’ in Fulford, Ersser and Hope, above n 5.

57. See at para 27.

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62. Ibid, p 182.

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67. Abortion Act 1967, s 1.

68. Human Tissue Act 1961.

69. I have illustrated this in Montgomery, J Time for a paradigm shift? Medical law in transition’ (2000) 53 Current Legal Problems 354 CrossRefGoogle Scholar especially at 373.

70. I began to explore the possibilities of this corporate approach to professional values in ibid, at 407–408.

71. I set out this argument in detail in Montgomery, above n 65, see especially at 327–331.

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83. For the inequality of this partnership, see Montgomery Health Care Law, above n 77, pp 434–437.

84. Re J [1991] 3 All ER 930 at 934.

85. See Alderson and Montgomery, above n 8.

86. Re W (1992) 9 BMLR 22 at 31. See also Balcombe LJ at 41. For a challenge to this assumption, see Miola, J Medical law and medical ethics – complementary or corrosive?’ (2004) 6 Medical Law International 251 CrossRefGoogle Scholar.

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88. Ibid.

89. NHS Trust v M; NHS Trust v H [2001] 2 FLR 367.

90. Airedale NHS Trust v Bland [1993] 1 All ER 821, F v West Berkshire Health Authority [1989] 2 All ER 545.

91. Montgomery Health Care Law, above n 77, ch 18; Montgomery, above n 69, at 402–405.

92. Re B ( Adult Refusal of Treatment ) [2002] 2 All ER 449.

93. This can be seen in the emergence of closer scrutiny of healthcare practice in clinical negligence litigation, although the picture is not uniform; see Montgomery Health Care Law, above n 77, pp 172–177.

94. Re J [1990] 3 All ER 930.

95. [2002] 2 FCR 193.

96. R v Price [1969] 1 QB 541; R v Dhingra unreported (1991), Birmingham CC.

97. [2002] 2 FCR 193 at para 253.

98. Eg the very interesting suggestions that human rights law might lead to a reassertion of adolescents’ autonomy rights in disputes with their parents in Re Roddy (A Child) (Identification: Restriction on Publication); Torbay Borough Council v News Group Newspapers [2003] EWHC 2927 (Fam), [2004] 1 FCR 481.

99. As would be expected from Munby J, the judgment was brilliantly and densely argued at significant length – 224 paragraphs.

100. Munby J himself recognised this in R (Watts) v Bedford Primary Care Trust and Secretary of State for Health [2003] EWHC 2228 (Admin), [2004] Lloyd’s Rep Med 113 at para 43, discussed above. For further discussion of rights to treatment under the NHS, see Montgomery Health Care Law, above n 77, ch 3.

101. [2002] EWHC 429 (Fam), [2002] 1 FLR 1090.

102. Burke at paras 180–194.

103. [1991] Fam 33. See the text above at n 93.

104. [2004] EWHC 2247 (Fam), [2005] 1 FLR 21.

105. Wyatt v Portsmouth Hospital NHS Trust [2005] EWCA Civ 1181, [2005] 3 FCR 263 at para 62; R (Burke) v General Medical Council [2005] EWCA Civ 1003, [2005] 2 FLR 1223 at para 63.

106. Kennedy, above n 60.

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108. Montgomery, above n 65.

109. A point brought out strongly in Miola, above n 86.

110. Brazier and Glover, above n 34.

111. R (Pretty) v Director of Public Prosecutions [2001] UKHL 61, [2002] 1 AC 800.

112. Pretty v UK [2002] 2 FLR 45.

113. See Montgomery, above n 69.

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