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Making the Jump to a Medico-Legal Career

15 Jul, 15 | by BMJ

Guest Post by Daniel Sokol

On a number of occasions, I have been asked by early career ethicists about the move from ethics to law, or the wisdom of seeking a legal qualification to supplement their ethical knowledge. In the UK, this can be achieved remarkably quickly. This blog post is an answer to those questions, based only on my own experiences.

In 2008, I was a lecturer in medical ethics and law at St George’s, University of London. I had no legal training, and felt uncomfortable teaching law to medical students. Some of the graduate students were former lawyers and it must have been obvious to them that the limits of my legal knowledge extended no further than the PowerPoint slide.

That year, an old school friend, a solicitor, encouraged me to become a lawyer. “I can imagine calling you ‘My learned friend‘ in court”, he said. And so the seed was planted, and with each soul-sapping marking session, and each article published and quite unread, the seed grew until, in 2009, I resigned from my lectureship to study on the law conversion course, now called the Graduate Diploma in Law (GDL). more…

The Legal and Moral Significance of Implantation

23 Jun, 15 | by BMJ

Guest post by Sally Sheldon

We tend to talk about contraception and abortion as if they were two separate and readily distinguishable practices, the former preventing pregnancy and the latter ending it. This understanding has a very important effect in current British law, where a relatively permissive approach to the availability of contraception stands in stark contrast to the morally grounded, onerous criminal sanctions against abortion. Yet is the distinction between abortion and contraception really so clear cut?  How and why do we make it? And is the line that we have drawn between the two morally defensible?

As a matter of biological fact, the development of human life is not characterised by bright lines. As the eminent lawyer Glanville Williams once put it, “abstract human life does not ‘begin’; it just keeps going.” A seamless biological continuum exists through the production of sperm and egg, their joining together in a process of fertilisation, the gradual development of the new entity thus created throughout pregnancy, birth, subsequent growth, eventual death and ensuing decay of the body. Defining what happens along the way as an ‘embryo’, ‘fetus’, ‘person’, ‘adult’, or ‘corpse’ requires an attempt to draw lines on the basis of criteria selected as holding significance for legal or other purposes. How and where we draw such lines is a tricky business, involving careful moral reflection informed by medical fact.

The “regulatory cliff edge” between the relatively permissive regulation of contraception and the criminal prohibition of abortion relies on a line drawn on the basis of the biological event of implantation, where the fertilised egg physically attaches itself to the wall of the womb some six to twelve days after ovulation. Yet while enormous legal weight has been placed upon it, little consideration seems to have been given as to why implantation matters morally. The voluminous philosophical literature on the ethical status of the human embryo and foetus offers little support for the view that implantation is an important marker.

Further, while it might once have been suggested that implantation offers a conveniently timed moment for a necessary gear change between the appropriate regulation of contraception and abortion, this argument is difficult to sustain in the light of modern medical science. more…

What should Investigators be Doing with Unexpected Findings in Brain Imaging Research?

22 Jun, 15 | by BMJ

Guest Post by Caitlin Cole

Incidental findings in brain imaging research are common. Investigators can discover these unexpected findings of potential medical significance in up to 70% of their research scans. However, there are no standards to guide investigators as to whether they should actively search for these findings or which, if any, they should return to research participants.

This complex ethical issue impacts many groups in brain imaging: participants and parents of child participants who may desire relevant health information, but alternatively may suffer from anxiety and financial burden; investigators who must ethically grant their participants autonomy, but who also may suffer from budget and personnel restrictions to manage the review and report of these findings; Institutional Review Board (IRB) members who must provide ethical oversight to imaging research and help mandate institutional standards; and health providers who must interface with their patients and assist with follow up care when necessary.

Our research study shows these groups share some ideas on the ethics of returning incidental findings – the researcher has an ethical responsibility or obligation to tell a subject that there’s something there, however they do it, but just inform the subject, even though it’s not part of the research” – yet also acknowledge the inherent risk in reporting medical research information. As one of our IRB members commented, I mean [in regards to withholding findings] one reason would be to protect the patient from doing something stupid about them.

When participants are asked about incidental findings, they consistently state that they want to receive all information pertinent to their health. Research participants want to make their own medical decisions and feel investigators have a responsibility to keep them informed.

However, it is clear from our research that participants do not always understand the difference between a brain scan for research purposes and a clinical scan. The incidental finding reports that they receive include personal health information, written in medical jargon, discovered during a clinical procedure that may have immediate or long term medical significance. Because of this crossover between conducting research and sharing health information, participants may overestimate the clinical utility of the reported research information. This is a challenge for investigators whose role is to conduct research, not to diagnose participants or offer findings with clinical certainty. Participant assumptions otherwise have the potential to cause downstream legal complications for the research institution.

It is necessary to understand the impact on all parties involved in the process of disclosing incidental findings to determine appropriate management policy. This challenging task should not be underestimated as these groups think differently about the balance between risk and benefit based on their role in this process, whether they be a research participant, a research investigator, an IRB member or a health provider. Overall there is an ethical demand to manage and report unexpected findings discovered in brain imaging research; finding a way to do this while minimizing negative impact for all involved is important.

Read the full paper here.

Animal Liberation: Sacrificing the Good on the Altar of the Perfect?

24 Apr, 15 | by Iain Brassington

For my money, one of the best papers at the nonhuman animal ethics conference at Birmingham a couple of weeks ago was Steve Cooke’s.*  He was looking at the justifications for direct action in the name of disrupting research on animals, and presented the case – reasonably convincingly – that the main arguments against the permissibility of such direct action simply don’t work.  For him, there’s a decent analogy between rescuing animals from laboratories and rescuing drowning children from ponds: in both cases, if you can do so, you should, subject to the normal constraints about reasonable costs.  The question then becomes one of what is a reasonable cost.  He added to this that the mere illegality of such disruption mightn’t tip the balance away from action.  After all, if a law is unjust (he claims), it’s hard to see how that alone would make an all-else-being-equal permissible action impermissible.  What the law allows to be done to animals in labs is unjust, and so it doesn’t make much sense to say that breaking the law per se is wrong.

Now, I’m paraphrasing the argument, and ignoring a lot of background jurisprudential debate about obligations to follow the law.  (There are those who think that there’s a prima facie obligation to obey the law qua law; but I think that any reasonable version of that account will have a cutoff somewhere should the law be sufficiently unjust.)  But for my purposes, I don’t think that that matters.

It’s also worth noting that, at least formally, Cooke’s argument might be able to accommodate at least some animal research.  If you can claim that a given piece of research is, all things considered, justifiable, then direct action to disrupt it might not have the same moral backing.  Cooke thinks that little, if any, animal research is justified – but, again, that’s another, higher-order, argument.

One consideration in that further argument may be whether you think that there’s a duty to carry out (at least certain kinds of) research. more…

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…

Flogging and the Medic

3 Mar, 15 | by Iain Brassington

You must, by now, have heard of the Saudi Arabian blogger Raif Badawi.  Just in case you haven’t (really?), here’s a potted biography: having set up the secularist forum Free Saudi Liberals, he was arrested for insulting Islam and showing disobedience.  Among the formal charges he faced was one for apostasy, which carries the death penalty in Saudi.  The apostasy charge was dropped, but he was convicted on other charges and sentenced to seven years in prison and 600 lashes.  He appealed, and this sentence was changed: it became 1000 lashes and 10 years in prison.  Why?  Does it matter?  Because Saudi Arabia.  The latest update is that the apostasy charge may be renewed, so for a second time, he faces beheading.  Part of the evidence against him is that he “Liked” a post on a Facebook page for Arab Christians.  (Remember: Saudi is one of our allies against religious extremism.)

The lashes were to be administered in batches of 50, weekly, after Friday prayers.  As I write this, he has only been flogged once; doctors have attested that he is not well enough to be flogged again.  And – with thanks to Ophelia for the link – it’s  not hard to see why:

Dr Juliet Cohen, head of doctors at Freedom from Torture, explained: “When the cane strikes, the blood is forced from the tissues beneath… Damage to the small blood vessels and individual cells causes leakage of blood and tissue fluid into the skin and underlying tissue, increasing the tension in these areas.

“The more blows are inflicted on top of one another, the more chance of open wounds being caused. This is important because they are likely to be more painful and at risk of infection, which will cause further pain over a prolonged period as infection delays the wounds’ healing.”

There is also the long-term damage done to the victim’s mental health caused by flogging.

“Psychologically, flogging may cause feelings of fear, anxiety, humiliation and shame. Anticipation of the next scheduled flogging is likely to cause heightened emotions especially of fear, anxiety and difficulty sleeping… pain and fear together over a prolonged period have a deeply debilitating effect and recovery from such experiences may take considerable time,” said Cohen.

At the beginning of February, Vincent Iacopino had a post on the main BMJ blog in which he claimed that health professionals should play no part in Badawi’s flogging: more…

Bye-Bye Saatchi Bill?

1 Mar, 15 | by Iain Brassington

It would appear that Lord Saatchi’s Medical Innovation Bill is toast.

The Lib Dems, who are reportedly the ones to have vetoed it, are nevertheless being mealy-mouthed about something they should be proclaiming from the rooftops: the Bill is/ was needless at best, and possibly dangerous.  But, hey: there’s an election coming up, and cancer treatment is politically important; meanwhile, the party isn’t popular, and could probably have expected a set of “Lib Dems veto miracle cure” headlines had they made that move.

Which, when you read the Graun‘s article, isn’t a million miles away from Saatchi’s response:

“By killing the bill they have killed the hopes of thousands of cancer patients. It is as simple as that. Nick Clegg has handed down a death sentence to cancer patients.”

Which is, of course, untrue.  But, hey: whatever else he may be, Saatchi’s a great ad-man, and there’s an election coming up…

Strange Happenings in Belgium

3 Feb, 15 | by Iain Brassington

There’s a part of me that recognises this story as having been in the news before – but I don’t think I’ve written on it, so here we go.  It’s from the Telegraph, under the headline “Son Challenges Belgian Law after Mother’s ‘Mercy Killing'” – which is a reasonably pithy summation of what’s at issue.  A man, Tom Mortier, is attempting to bring a case before the European Court of Human Rights that would have Belgian laws on euthanasia scrutinised and – he hopes – declared contrary to the ECHR:

A Belgian man is going to the European Court of Human Rights after his depressed mother was killed by lethal injection under the country’s liberal euthanasia laws. […]

Mr Mortier is trying to take his mother’s case to the Strasbourg court under the “right to life” legislation in the European Convention of Human Rights. He hopes, at the very least, to trigger some debate in his country, and secure greater oversight in the way the existing rules are applied.

OK – so it’s not clear whether he’s actually got the Court to agree to hear his case (which is what “going to the ECtHR” suggests in ordinary usage), or whether he’s still attempting to get it to agree to hear it.  If it’s the latter, then he might be going to the ECtHR in the sense of being physically present – but that’s not going to achieve much.  The Telegraph isn’t clear on this.  Oh, well.  But is there anything of substance to his case?  It might have substance and still fail, of course – it’s perfectly possible for a court to say that they can see a person’s point, but that it’s not sufficiently powerful; but if it has no substance, then it ought to fail.

Based on the Telegraph‘s report, it seems that there really isn’t much substance to it.  This is not to say that there’s none – but there’s not much.  And, as we’ll see, it’s a bit strange in some ways. 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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