Ethics

The great questions of modern health care – abortion, euthanasia and organ transplantation, for example – now come before the law prepackaged as moral problems. Consequently any legal response is expected first and foremost to be ethically sufficient. Judicial decisions and legislation are liable to be evaluated on this basis, not only by philosophers, but also by lawyers. Ethics is held to be the truth of the law in this area: that which the law must strive for, though often failing in doing so.1 The reasons why this should be so are seldom explored. The connection between law and ethics is held by many scholars to be natural and inevitable.2 Different theoretical styles, such as utilitarianism or Kantian deontology, are accepted or rejected, as are specific principles, such as the doctrine of double effect.3 The direct normative relevance of ethics to medical law is, however, beyond question. Of course medical lawyers do not suggest that courts and legislators have always been guided by ethical principle in practice. Indeed scholars have defined as a key task for themselves precisely the labour of instructing, praising or condemning legal decision makers in this regard. Generally, however, the task is seen as one of revealing and elaborating a pre-existing link between the two disciplines. The purpose of this concluding chapter is to question that assumption and to investigate the specific historical and disciplinary contexts which have made ethics plausible as a higher instance for medical law reasoning. My objective is to offer a rhetorical reading of the emergence of a new, ethically informed medical law which has challenged the professioncentred model associated with the Keynesian welfare state model considered throughout this book. Medical law practitioners and scholars do not, of course, ignore the contextual and historical dimensions of their work. Indeed medical law is often said to share with medical ethics a distinctive origin story by which it explains its emergence and its reasons for existing. In this narrative, the founding moment is often provided by the Nuremberg trial of Nazi

doctors in 1945.4 The horrific crimes committed by German doctors against prisoners of war and concentration camp inmates brought forth the ringing declaration of patients’ rights in the decision of the US military tribunal.5 Modern bioethics is then taken to develop, by way of reaction, as a means of ensuring that such violations never happen again. As at Nuremberg, law is the necessary instrument of this moral purpose. It is clear that the practices revealed by the Nuremberg trials are of profound and enduring salience in ethical and legal debate concerning medical practice. What may be reflected upon, however, is whether a direct causative link can be traced between the atrocities documented by the tribunal on the one hand, and the rise of a specific form of medical law and medical ethics in the post-war period on the other. For one thing, it is widely accepted that these two related disciplines did not emerge in their present form until the period from the late 1960s to early-1980s.6 If a climate of paternalism and unprincipled decision making had allowed the Nazi doctors to flourish, then such a climate continued to prevail in Britain and the United States three decades after their crimes were made known to the world at Nuremberg. Moreover, it can readily be argued that the traditional model of doctor-patient relations in Britain was strengthened, not weakened, by the revelations at Nuremberg. As discussed in earlier chapters, both conservative philosophers, such as Michael Polanyi, and socialist politicians, such as Aneurin Bevan, were of the view that it was precisely the self-selecting and self-governing nature of the British professions, including medicine, which had preserved their independence from the state.7 By contrast the rule-based rationalism of medical practice on the continent had opened up the professions there to external political control, making them an instrument of totalitarian oppression and criminality. It is not possible here to establish the specific historical effectiveness of different approaches to medical governance in protecting British, German and other patients. The point is rather that the association of medical law and medical ethics cannot simply be seen as an inevitable reaction to the events of the Second World War and their aftermath. The interdependent relation between them was not pre-given, but created through persuasive work on the part of scholars and practitioners of both disciplines. Clearly the case of the Nazi doctors served as a powerful negative exemplar, but only when harnessed to arguments concerning developments within the legal system and in its broader social environment. This chapter investigates the conditions under which the identification of medical ethics and medical law became plausible for lawyers and legal academics. As has been seen throughout this book, prior to the rise of ethics, and the creation of more modern medical law, courts and legislators deferred to clinical and professional judgment in deciding on legality in this area. Previous chapters have explored the manner in which that

deferral to medical decision-making was substantively plausible in so far as it was justified by common-sense ideas of the national space, utopia, art and science. In the present chapter I move beyond this to explore the manner in which such deferrals were formally plausible in so far as they reflected broader developments in the nature of mid-twentieth century law. I hope to show that this Bolam regime was consistent with a shift away from abstract and universally applicable rules towards more open-ended standards, allowing high levels of executive discretion and professional autonomy under the Keynesian welfare state.8 Having elaborated the key elements of this ‘deformalization’ of law, in the next section, I will trace them through the key features of medical law under Bolam. In subsequent sections I argue that the positions developed by early medical law scholars were informed by broader critiques of law in this mode. They argued in effect that Bolam constituted a violation of traditional rule-of-law values, opening the way to medical paternalism and a denial of patients’ rights. In later sections I will argue that medical ethics played an important role in supporting these challenges and in articulating a response to them. In short it offered an aspirational goal for academic reformers: an ideal of law restored to its true form. This resonated with broader neo-liberal critiques of law in the welfare state and with proposals for a more autonomy-focused, contract-based legal order to come in its place. As such this final chapter offers a contextual and rhetorical reading of the origins of the ‘new medical law’ which is succeeding Bolam.