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In the Courts

A Hot Take on a Cold Body

21 Nov, 16 | by Iain Brassington

It’s good to see Nils’ post about the recent UK cryonics ruling getting shared around quite a bit – so it should.  I thought I’d throw in my own voice, too.

About 18 months ago, Imogen Jones and I wrote a paper musing on some of the ethical and legal dimensions of Christopher Priest’s The Prestige.  One dimension of this was a look at the legal status of the bodies produced as a result of the “magic” trick – in particular, the haziness of whether they were alive or dead; the law doesn’t have any space for a third state.  The paper was something of a jeu d’esprit, written to serve a particular function in a Festschrift for Margot Brazier.  If I say so myself, I think it’s a pretty good paper – but it’s also meant to be fun, and is clearly rather less serious than most ethico-legal scholarship (or anything else in the book, for that matter).

coldlazarus5

Not quite “Cold Lazarus”, but close enough…

So it’s a bit of a surprise to see relevantly similar themes popping up in the news.  If we’re freezing people in the hope of curing terminal illness in the future, what’s the status of the bodies in the meantime (especially if the death certificate has been signed)?  There’s a load of questions that we might want to ask before we get too carried away with embracing cryonics.

Right from the start, there’s a question about plausibility.  For the sake of what follows, I’m going to treat “freezing” as including the process of defrosting people successfully as well, unless the context makes it clear that I mean something else.  Now, that said, the (moral) reasons to freeze people rely on the plausibility of the technology.  If the technology is not plausible, we have no reason to make use of it.  It wouldn’t follow from that that using it’d be wrong – but since the default is not to act in that way, it’s positive reasons that we need, rather than negative ones.  Neither could we really rely on the thought that we could cryopreserve someone in the hope that the freezing-and-thawing process becomes more plausible in future, because we’d have no reason to think that we’d chosen the right version of the technology.  We can only cryopreserve a person once: what if we’ve chosen the wrong technique?  How would we choose the best from an indefinitely large number of what we can at best treat as currently-implausible ones?

So how plausible is it to put a body on ice, then revive it many years later?  It’s been pointed out by some that we currently do preserve embryos without apparent ill-effect, with the implication that there’s no reason in principle why more developed humans couldn’t be frozen successfully.  However, whole humans are a wee bit more complex than embryos; it’s not at all clear that we can extrapolate from balls of a few cells to entire humans.  Even the admittedly limited experimental evidence that it’s possible to freeze whole organs won’t show us that, since we’re systems of organs.  One can accept that an organ is a system, too; but all that means is that we’re systems of systems – so we’ve squared the complexity.  And, of course, the timescales being considered here are tiny compared with the kind of timescales envisaged in cryonic fantasies. more…

Justice Cryogenically Delayed is Justice Denied?

18 Nov, 16 | by BMJ

Guest Post by Nils Hoppe

Re JS (Disposal of Body) [2016] EWHC 2859 (Fam)

This unusual and sad case concerns a court application by a 14 year old girl, JS.  In 2015 she was diagnosed with a rare form of cancer which proved terminal and, at the time of her application, she was receiving palliative care as an in-patient at a hospital.  The other parties involved in the application were JS’s parents, who were acrimoniously divorced.  JS had no direct contact with her father after 2008.

Knowing that she would soon die, JS carried out online research into commercial cryogenic preservation techniques, defined in the judgment as “the freezing of a dead body in the hope that resuscitation and cure may be possible in the distant future”.  Such techniques are not uncontroversial, being regarded with scepticism by the majority of the medical and scientific community.  They are also not cheap: the judgment describes the costs associated with the basic cryopreservation package as being in the region of £37,000, or, as Mr Justice Peter Jackson put it, “about ten times as much as an average funeral”.

Of most significance to the court application was the fact that the proposed procedure required the cooperation of the hospital in which JS was a patient.  This concern was described in the following terms by the judge:

The body must be prepared within a very short time of death, ideally within minutes and at most within a few hours.  Arrangements then have to be made for it to be transported by a registered funeral director to the premises in the United States where it is to be stored.  These bridging arrangements are offered in the UK for payment by a voluntary non-profit organisation of cryonics enthusiasts, who are not medically trained.  Evidently, where the subject dies in hospital, the cooperation of the hospital is necessary if the body is to be prepared by the volunteers.  This situation gives rise to serious legal and ethical issues for the hospital trust, which has to act within the law and has duties to its other patients and to its staff. (at paragraph 12)

JS, described as bright, intelligent and articulate, decided that she wanted her body to be cryopreserved after her death.  Her mother supported this wish: her father did not initially, though his views changed.  By the time the matter went to court, JS’s father was prepared to agree to what she wanted, subject to certain conditions, including that he be permitted to see her body after her death (which was objectionable to JS), and that he not be financially liable for the cryopreservation process.

In these circumstances, Mr Justice Peter Jackson was asked to make an order permitting JS’s mother to make arrangements for the cryopreservation of JS’s body after her death and, conversely, preventing her father from intervening.  In doing so, he considered a range of legal and ethical issues.

The whole concept of halting decay after death in order to wait for a miracle cure is predicated on the potential for future scientific progress.  At the same time, it was clearly right for Mr Justice Peter Jackson to work on the basis of science as it stood at the time the matter came before him.  The cessation of the JS’s life is, in the current scientific context, irreversible and fulfils the criteria we use to diagnose death in a legally meaningful way.  The question of what is then done with her body is at this stage of secondary importance only.  She may request to be interred in a family tomb, be incinerated, or donate her body for scientific purposes.  In this case, she would like to be cryopreserved.  The court ought to only engage with this issue in detail if the proposed use of the body after death raises issues which touch on public morals, such as Lord Avebury’s memorable attempt to bequeath his body to Battersea Dogs’ Home, or Jeremy Bentham’s installation as an autoicon.  Her wish to place a very expensive bet on an unknown future technology becoming available is her business alone and may even be a fully acceptable, if unusual, desire with which a court ought not interfere.  Her bet also extends to that new technology permitting her successful resuscitation.  It extends to her mental faculties surviving the procedure so she can meaningfully engage with her surroundings post-resuscitation.  And it also extends to a cure having been found for the condition which caused her first ‘death’.

Any one of these bets is so risky as to be legitimately thought of as unlikely.  In sum, they are sufficiently unlikely to not raise a significant problem in the proceedings before Mr Justice Jackson: If he thought that her death was, on the balance of probabilities, reversible at a future point in time, would he be entitled to decide this issue on the basis that she is dead?  Most jurisdictions, including England and Wales, are clear that the death of the individual must be ‘irreversible’ to be normatively meaningful.  Where this is the case, what is done with the body afterwards is very much a matter for the concerned individual and her family.  There is only a reserve right for public institutions to intervene if the proposed use is deemed so inappropriate as to negate her right to decide what to do with her body after her own death.

Indeed, where the discussion at some point centres upon what the best interests of JS are it seems clear that it must be ever so slightly more in her interest to preserve an opportunity of resurrection, albeit enormously remote, than it is to be interred and decay irreversibly.  It seems clear that there is very little sensible argument which would allow the Court to deny her final wish.  The mere fact that we feel the promises made by the cryopreservation industry amount to a most grievous form of quackery is insufficient to justify an interference, just as we do not have to like or agree with the reasons why adherents to some religions used to refuse blood transfusions.

The Court was required to work on the basis of what is scientifically possible at this point in time, and be agnostic as to any future developments.  Mr Justice Jackson did so, and he did so with commendable sensitivity to the subject matter before him.  The decision is the right one to reach.  The theoretical question of what becomes of all those cryopreserved in facilities across the world if technology advances to the point where they can effectively be rescuscitated remains for another time.  But there is an exciting point here: unless the law is changed ex ante, cryopreservation companies will suddenly have custody of hundreds of comatose patients, rather than dead bodies – with all of the entailing legal and moral obligations.

Further Clarity on Co-operation and Morality

4 Oct, 16 | by miriamwood

Guest Post by David S. Oderberg, University of Reading

Re: Further clarity on co-operation and morality

The 2014 US Supreme Court decision in Burwell v. Hobby Lobby was a landmark case on freedom of religion and conscience in the USA. The so-called ‘contraceptive mandate’ of the Affordable Care Act (aka Obamacare) requires employers to provide health insurance cover for contraception used by their employees. The Green family (Evangelical Christian), owners of the Hobby Lobby chain of arts and crafts stores, challenged the mandate as they objected to providing cover for at least those methods of contraception that are abortifacient. They were joined by the Hahn family (Mennonite Christian), owners of a furniture company.

The case wound up at the Supreme Court, where the majority, led by Alito J, agreed with the plaintiffs. Under the Religious Freedom Restoration Act 1993, the plaintiffs were ‘substantially burdened’ in their exercise of religious freedom. They sincerely believed that by providing insurance cover that violated their religious and moral beliefs, they would be complicit in sinful behaviour. Violation of the RFRA, the court decided, meant the plaintiffs were entitled to an ‘accommodation’ or ‘opt-out’ of the contraceptive mandate.

The case is remarkable for a number of reasons. Conscientious objection is not new to the courts, particularly as regards service in war. Nor is Hobby Lobby unusual for recognising that a legal person such as a corporation can have its freedom of religion violated in virtue of what its owners/executives are required to do by law. After all, the contraceptive mandate already exempted churches and other purely religious bodies. In the present case, however, the plaintiff corporations were not religious in nature: it was their owners/executives who claimed a corporate exemption based on their personal religious and ethical beliefs. The judgment thus radically extends the potential scope for religious freedom litigation under RFRA, something that will occupy the courts for many years to come.

more…

Event: Courting Controversy?

3 Jul, 16 | by Iain Brassington

This might be of interest to some readers:

Courting Controversy?  Recent Developments in Health Care Law

21 July 2016

Chancellors Hotel, Chancellors Way, Moseley Road, Fallowfield, Manchester M14 6NN

This afternoon seminar examines some controversial recent developments in health care law and introduces two new books on law and medicine:

  • Margaret Brazier and Emma Cave Medicine, Patients and the Law (6th Edn) (Manchester UP, 2016)
  • Catherine Stanton and Hannah Quirk (eds), Criminalising Contagion: Legal and Ethical Challenges of Disease Transmission and the Criminal Law (Cambridge UP, 2016)

Participants will have the opportunity to discuss developments in the law and meet the authors and researchers from the Centre for Social Ethics and Policy (CSEP) informally.

Programme

13:30 – 14:00  Registration

14:00 – 14:30  Overview of recent developments (Margot Brazier and Emma Cave)

14:30 – 15:00  Protecting Vulnerable Patients (Emma Cave)

15:00 – 15:30  Criminalising Disease Transmission: Demands, Difficulties and Dangers (Hannah Quirk)

15:30  Tea

16:00 – 16:30  Patient Autonomy: Clinical Compulsion?  An Analysis of Montgomery and Doogan – Margot Brazier

16:30 – 17:00  Law Commission Recommendations on Deprivation of Liberty Safeguards – Neil Allen

17:00  Open Discussion

17:30  Reception

This event is free and offered by the CSEP and the School of Law, University of Manchester.  Registration, however, is required.  Please reserve your place here.  For more information, email maureen.barlow[at]manchester.ac.uk

No to Conscientious Objection Accommodation in Health Care

22 Apr, 16 | by BMJ

Guest post by Udo Schuklenk

Canada is currently in the midst of a national debate about the scope of assisted dying regulations and policies.  It’s a result of a 2015 Supreme Court ruling that declared parts of the country’s Criminal Code null and void that criminalises assisted dying.  As you would expect, there is a lot of forth and back happening between proponents of a permissive regime (à la Belgium/ Netherlands), and those who would like a restrictive regime.  Another issue is being debated as well as litigated in the courts, the seemingly intractable question of conscientious objection accommodation.

In preparation for incoming provincial policies on assisted dying, the provinces’ statutory medical bodies, such as for instance the College of Physicians and Surgeons of Ontario, have stipulated that while doctors are not obliged to provide directly assistance in dying to eligible patients, they must transfer patents on to a colleague who they know will provide that service.  A similar stance has been taken in the recommendations issued by an expert advisory group appointed by the country’s provinces and territories, who are ultimately responsible for health care.  The same holds true for a report issued by a special joint parliamentary committee of the country’s national parliament.  Unsurprisingly, religious doctors’ groups, but not only religious doctors’ groups, are all fired up about this and have taken, for instance, the Ontario College to court to stop this policy from being implemented.  Their argument is that conscientious objectors among its members must not be forced to provide even this level of assistance if their conscience dictates otherwise.

It is likely that the compromise reached will entail an obligation on health care professionals to transfer patients on to a willing health care professional.  That will not satisfy the objectors, because if you really hold the view that assisting a competent patient who meets the criteria stipulated by the Supreme Court is tantamount to murder, this compromise would simply translate into you passing on your patient to someone who you know would ‘murder’ that patient.  It is also not satisfactory from the patient’s perspective, because they could – depending on where they live – be forced to travel great distances in order to meet the obliging health care professional.  That could well prevent some patients from access to an assisted death.

The question arises why we should accommodate conscientiously objecting health care professionals in the first place.  It is somewhat taken as a given in much of the medical ethics literature that conscientious objectors are deserving of some kind of accommodation.  Arguments often focus on what makes a conscientious objection deserving of accommodation, and on what reasonable limits should be imposed on conscientious objectors, as opposed to the question of whether conscientious objectors deserve accommodation at all.

In our paper we develop a more radical argument for the view that health care professionals have no moral claim to conscientious objection accommodation in liberal democracies.  We put forward a number of arguments to support that conclusion.  For starters, it is impossible to evaluate the truth of the authoritative documents that motivate particular consciences.  The courts in many jurisdictions that have had to deal with conscience related cases have conceded that much.  It turns out that we also actually cannot test whether someone’s conscience claims are actually true, in the sense that that person actually has those convictions.  It might just be a convenient cop-out, and yet we readily accommodate objectors at great inconvenience to patients and significant cost to health care systems.

Why should we accommodate privately held convictions that objecting professionals would like to prioritise over their professional obligations to patients?   That demand seems unprofessional in its own right.  The promise to serve the public good and the individual patient first goes right out of the window, there and then.  These professionals joined their profession voluntarily and they knew that the scope of professional practice and their obligations to patients wouldn’t be defined by them personally, and also that changes to scope would invariably occur over time.  The content of conscientious objections is by necessity arbitrary and encompasses any number of practical refusals to provide services.  No health care system should permit its monopoly service providers that sort of freedom when it comes to the delivery of the very same services that they voluntarily contracted to deliver.  Permitting such conscience accommodations ultimately subverts the very reasons for why society has professions in the first place.

 

Udo Schuklenk tweets @schuklenk

Read the full paper here.

Nurses Cannot be Good Catholics

31 Mar, 16 | by BMJ

Guest Post by John Olusegun Adenitire

It seems that if you are a nurse you cannot be a good Catholic.  Or, better: if you want to work as a nurse then you might have to give up some of your religious beliefs.  A relatively recent decision of the UK Supreme Court, the highest court in the country, seems to suggest so.  In a legal decision that made it into the general press (see here), the Supreme Court decided that two Catholic midwives could not refuse to undertake administrative and supervisory tasks connected to the provision of abortions.

To be sure, no one asked the nurses to directly assist in the provision of abortions.  The Abortion Act 1967 says that “No person shall be under any duty … to participate in any treatment authorised by this Act to which he has a conscientious objection.”  The Nurses argued that this provision of the Act should be understood widely.  Not only should they be allowed to refuse to directly assist in abortion services: they should also be entitled to refuse to undertake managerial and supervisory tasks if those were linked to abortion services.  The nurses’ employer was not impressed; neither was the Supreme Court which ruled that the possibility to conscientiously object only related to a ‘hands-on’ capacity in the provision of abortion services.

In a recent paper in the JME (available here) I have argued, albeit only indirectly, that this decision is only half-correct.  Nurses and other medical professionals have a human right to object to the provision of a wide range of services which they deem incompatible with their conscience.  I say that the decision of the Supreme Court is only half-correct because the Court explicitly avoided investigating the possibility of the nurses’ human right to conscientious objection.  Under the Human Rights Act, individuals have a right to freedom of conscience and religion.  That right may, in appropriate circumstances, entail the right for nurses to object to being involved in administrative and supervisory duties connected with abortion services.  If you ask me how the Supreme Court avoided having to consider the nurses’ human right to freedom of conscience and religion I couldn’t tell you.  I bet neither could any of the Law Dons at Oxford.

I realise that by appealing to human rights I am not necessarily making the nurses’ case any more deserving of sympathy that it already is(n’t). more…

*Reboot*

25 Jan, 16 | by Iain Brassington

It’s been a while, what with marking and supervising and writing new courses and general faff, but with luck the blog’ll be getting updated a bit more frequently; there’s a couple of guest posts in the queue, the first of which I’ll post later today.  And I’m hoping to restart semi-regular moans of my own ASAP, too.

In the meantime, I’m just going to draw your attention to this paper in the latest issue of the JME, in which Montgomery and Montgomery write about Montgomery.  If that doesn’t give you a deep sense that all is well with the world, you’re dead inside.

The Death of Sidaway: Values, Judgments and Informed Consent

15 Mar, 15 | by BMJ

Guest post by Kirsty Keywood (University of Manchester)

On 11th March Nadine Montgomery won her case before the UK Supreme Court to gain compensation for the failure of her obstetrician to warn her of risks associated with the vaginal delivery of a large infant – a risk which she would have averted by requesting a caesarean section.[1] Shortly after his birth, her son was diagnosed with cerebral palsy and a brachial plexus injury, resulting from the occlusion of the placenta during a “very stressful” vaginal delivery.

Nadine Montgomery had diabetes, which increased her chances of giving birth to a larger than average-sized baby. This, in conjunction with her small stature (she was 5 feet tall), indicated a risk that a natural delivery would bring with it a 9-10% chance of shoulder dystocia. Were dystocia to occur, attempts to dislodge the infant’s shoulders through mechanical manoeuvres would generate a risk of occlusion of the umbilical cord resulting in death or cerebral palsy of 0.1%. According to the obstetrician, Dr McLellan, the risk of shoulder dystocia did not merit specific mention in discussions with diabetic patients, because the risk of an adverse event associated with shoulder dystocia was very small indeed.

Mrs Montgomery’s case before the UK Supreme Court hinged on the question of the nature of the obstetrician’s duty to the patient. more…

A Bit More on Nonhuman Persons

23 Dec, 14 | by Iain Brassington

A bit of a followup to my last post: sometimes, nonhumans are granted habeas corpus:

Orangutans have been granted the status of “non-human persons” with legal rights in a landmark court ruling in Argentina. The decision clears the way for Sandra, a shy 29-year-old, to be freed from Buenos Aires Zoo after spending her entire life in captivity. […]

The ruling came after animal rights campaigners filed a habeas corpus petition – a document more typically used to challenge the legality of a person’s detention or imprisonment – on behalf of the Sumatran orangutan, who was born at a German zoo and was transferred to Buenos Aires two decades ago.

Sandra will, unless there’s a successful appeal, be moved from the zoo to a sanctuary.

In practice, this might not make all that much difference.  She’ll still be confined in a sanctuary; it would be utterly indefensible just to turf her out onto the streets, and she wouldn’t last long.  And in some cases, it’s quite possible that a well-run zoo is the best possible place in which to look after her or others like her.  Zoo, sanctuary: tomayto, tomahto.  Meh.

What matters primarily is that a point of principle is established, and secondarily that there would be some guidance about the kind of facilities that would be minimally decent.  It’s likely to be wholly acceptable, morally and legally, to keep great apes in some form of captivity if it’s in their interests, in rather the same way that we might provide a human child or an adult with an intellectual disability with sheltered or supervised accommodation, and might even limit their time away from it.  (The family home is a kind of sheltered and supervised accommodation!)  If a creature – human or orang or chimp or whatever else – can’t deal with the world around them, that seems to be morally required.  Let’s call this “soft captivity”, as opposed to the “hard” captivity of some zoos, prisons, laboratories, and so on.  The point is that, rather as we wouldn’t deny that a child or adult disabled human is a person and thus protected by the law, it does seem reasonable to extend that protection to members of other species.

I wonder how much further we could push it: it’s one thing to have a great ape in soft captivity for its own protection; and it’s one thing to say that if a great ape is in captivity, it ought to be soft captivity.  But could we make a similar claim about keeping a member of a species in soft captivity for the sake of protecting the species?

Orangs are under threat.  Now, a threat to the species is almost always a threat to the members of the species, too – and so we would almost always be unable to distinguish acting to protect individual orangs and the species as a whole.  But this needn’t be the case.  Imagine that there are two small colonies of the animal left; a genetic bottleneck means that neither is viable on its own, but, if they were combined, the species may be rescued and flourish in the future.  Furthermore, each colony is in a confined area that cannot support a bigger population.  There is no direct threat to either colony, though.  It so happens that a busy road separates the colonies, which means that they are to all intents and purposes isolated.

Would it be permissible to swing into action to take all these orangs into a sufficiently big sanctuary, and maybe to keep them there for the sake of increasing the population?  It wouldn’t obviously be in the interests of any particular living orang; but it could be in the interests of the species.  Even if the captivity is soft, it is still captivity.  Would it be justified?

Part of me thinks that it might be; but this does rely on thinking that the species qua species has a moral value and interest, aside from the value and interest of its members.  And that does seem like a bit of a stretch – especially if (as seems plausible) individual orangs have no concept of species with which they can identify.

 

Admittedly, this isn’t a medical ethics post in the strict sense – but it’s a nice story, so ner.

Rights, Duties, and Species

19 Dec, 14 | by Iain Brassington

A little earlier this year, there was a case brought before the New York courts concerning a chimpanzee called Tommy: the matter was the lawfulness of keeping Tommy confined.  Acting on Tommy’s behalf was an organisation called the NonHuman Rights Project.  The legal documentation filed is available here.  The basis of the case was not so much that Tommy was being harmed by his treatment as that he was wronged by it: to keep a chimpanzee in such conditions s a violation of certain rights, and ought not to be allowed granted a plausible application of habeas corpus, even the most comfortable of cages still being a cage – or so the claim went.  Essentially, the legal question under consideration was this: does a chimpanzee have any of the legal rights that a human has; and, if so, which?

Perhaps predictably, the suit was rejected; Justice Karen Peters found that habeas corpus did not apply to chimpanzees, and the other judges agreed.  Whatever legal restrictions there may be on primates, they do not fall under the rights paradigm.

The reasoning here strikes me as being a touch… well, wonky.

A significant part of the argument revolves around what kind of thing counts as a person, and so ought to have the rights of a person.  It’s not difficult to see why this is important in bioethics, because it’ll impinge on what happens in laboratories, and – potentially – on what happens in a human uterus or neonatal unit.  If the definition of “person” extends to chimps, the suit goes, then habeas corpus should apply.  If it doesn’t, then there’s no reason to suppose that it would.  The judgement is that personhood does not apply to chimps.  The term has, the court found, never been explicitly defined; and habeas corpus relief has never been granted to any nonhuman.  This wouldn’t mean that it shouldn’t be; the question then would move on to examining the ought question.

For Peters, there is no ought here, and this conclusion is based on an appeal to a particular definition of “person”.  It’s worth quoting the ruling at length here: more…

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