ABSTRACT
At the outset of the last chapter, I proposed that judicial and legislative deference to professional opinion was supported rhetorically by images of clinical practice as a distinctive form of work which resonated with the self-perceptions of lawyers. I noted that there were two significant such images and went on to explore in some detail the first of these, the idea of medicine as a scientific practice, driven by an ongoing contest of opinions. In this chapter I will investigate the second, the art model of medicine, investigating its plausibility, again with reference to influential understandings of the nature of the common law. I consider first the prominence of ‘judgement’ and the ‘individual case’ in the language of medical leaders from the late nineteenth century and note its continuing salience in polemics regarding the nature and purpose of medical work. I then examine briefly the manner in which this model was reproduced in leading medical law decisions from the period around the foundation of the NHS onwards. In the following two sections, I draw on work in the philosophy of medicine and in legal theory to clarify the elements of this model and to show how they are shared by both disciplines. These elements include the idea that the true nature of practitioner knowledge cannot be captured in explicit rules and prescriptions; that clinical and legal reasoning are primarily analogical in form; and that, as a result, skills are best transmitted subliminally through a period of apprenticeship. In conclusion, I locate these common representations with reference to broader conservative political theories. I note the irony that a hierarchical model of professional authority, ratified and depended on by the law, contributed to the functioning of the egalitarian welfare state.
