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Transforming wrong(s) into right(s): The power of 'proper medical treatment' - Abstracts

Session I: Framing the issues

'What makes wrong(s) right(s)?'

Professor Margaret Brazier, Law School and Centre for Social Ethics and Policy, University of Manchester, and Dr Sara Fovargue, Law School and Centre for Bioethics and Medical Law, Lancaster University

Many of the things that doctors do would be crimes if the self-same act was performed by a lay person.  It is three deceptively simple words 'proper medical treatment' that may operate to make what is usually a wrong right.  Thus, if we were to amputate a colleague's arm competently and safely and with her consent we may still face prosecution for causing grievous bodily harm.  Were we both medical doctors the 'privilege' of 'proper medical treatment' might well save us from the dock.  In our paper we explore the elusive meaning of 'proper medical treatment', and its applications and justifications in modern society.  We also start to tease out how the initial claim of 'proper medical treatment' may go a step further and over time change how society and the law regard the rights of the patients and what is right in society.


'Papist potions and electric sex: A historical perspective on "proper medical treatment"'

Dr Barry Lyons, School of Medicine, Trinity College Dublin

However unsettled the question of what exactly constitutes 'proper medical treatment' is currently, even a brief survey of the history of medicine indicates that the recurring themes of 'what' and 'by whom' have been issues of contention for centuries.  At times the concerns raised over 'irregular' practices were motivated by patient welfare; at others, because of anxieties about professional protectionism.  Thus, claims and counter-claims abounded and although the terminology varied, in essence 'quackery' was that which was antithetical to 'proper medical treatment'.  However, what kinds of practices constituted quackery (and who exactly was a quack) was the subject of polemics, and litigation.  Throughout all of this, the consumer chose whatever form of treatment they thought most suitable to their condition, and consistent with their means.  This paper is not a chronology of quackery, nor a comprehensive survey of historical patient choices; rather, it is an attempt to draw out themes that remain relevant today.  What might the notion denote, who decides, how do we view orthodoxy and maverick conduct, how important are outcomes and how reasonable is it to judge the appropriateness of medical treatment through a retrospective lens?


'"Proper medical treatment": Views and experiences of family members of people with chronic disorders of consciousness'

Professor Celia Kitzinger, Department of Sociology, University of York and Professor Jenny Kitzinger, School of Journalism, Media and Cultural Studies, Cardiff University, Co-Directors of the York-Cardiff Chronic Disorders of Consciousness Research Group

Based on interviews with over 50 family members of people with chronic disorders of consciousness (such as in vegetative or minimally conscious states), this paper explores how family members construct 'proper medical treatment' for their relative.  We show how most families' deference to medical opinion early after the precipitating incident gives way to lay expertise (based on internet research, media accounts and information sought from personal contacts) and that family and medical versions of 'proper medical treatment' can then come to diverge quite markedly.  We explore how conflicting views are negotiated, between family members and between families and medical teams, about whether certain medications and procedures do or do not constitute 'proper medical treatment' and the criteria families use to decide on, and account for, their positions.  While 'proper medical treatments' are pursued with great determination (often at great personal and/or financial cost to the families), when the same procedures are considered not to be 'proper medical treatments' they are experienced by families as 'torture' for the patient.  Families describe 'improper' hospitalisation and treatments by analogy with 'kidnap', 'imprisonment', 'rape', and the force-feeding of political prisoners.


Session II: How 'wrongs' can become 'rights'

'Legal change on gender reassignment surgery: The role of the criminal law'

Professor Penney Lewis, King's College London

New and controversial medical procedures such as gender reassignment surgery are often thought, at least initially, to be prohibited by the criminal law. This article examines how—without any formal legal intervention—gender reassignment surgery for a consenting patient eventually became accepted as lawful in most major common law jurisdictions. The law of maim or mayhem, and in particular the inclusion of castration within this offence had an important impact on surgical practice in this area. Many doctors were deterred from operating on such patients. The focus on castration had a distorting effect on medical practice and drove those seeking castration underground, to more permissive jurisdictions, or to attempt self-castration. Medical records and even publications were falsified. Procedures were modified so that they could not be described as castrative. Eventually, primarily by using a patient-focussed public policy justification founded on the risk of self-harm if the patient were not provided with surgery, a critical mass of gender reassignment procedures overwhelmed any remaining doubts and the procedures became incorporated within the medical exception.


'Dying to be beautiful: Rethinking the justification for aesthetic cosmetic surgery'

Dr Danielle Griffiths, Institute for Science, Ethics and Innovation, University of Manchester, and Dr Alexandra Mullock, Law School and Centre for Social Ethics and Policy, University of Manchester

While cosmetic surgery began as a branch of surgery with clearly therapeutic aims, many of the operations carried out in recent years might be seen to have dubious, if any, therapeutic purpose. Moreover, many such procedures are potentially harmful even when the surgery is successful and the immediate objective (for example, acquiring large breasts) is achieved. The huge growth in the cosmetic surgery industry rests primarily upon the (growing?) cultural ideology of vanity and youthfulness rather than an increase in those suffering psychologically from real or perceived physical inadequacies or imperfections. Cosmetic surgical techniques and related non-invasive procedures continue to rise, becoming more accessible and normalised, at the same time as demand is growing, yet regulation and safety in this area is questionable as evidenced by recent scandals such as the Poly Implant Prothese (PIP) health scare. Cultural pressure, unconstrained by proper law and regulation, may be driving many into undergoing often extreme and risky surgery. For this reason, we might question whether the medical exception, which renders serious harmful acts lawful in the medical context, should even be applied to non-therapeutic cosmetic surgery.


Session III: A doctor's duty?

'Abortion as proper medical practice'

Dr Sheelagh McGuinness, University of Birmingham

This paper builds upon previous work by Michael Thomson to assess the extent to which abortion remains a boundary-issue for the medical profession.  I consider where abortion providers sit in relation to the medical profession as a whole, and where abortion sits in relation to clinical care.  The focus for this analysis is the Abortion Act 1967, particularly the conscientious objection provision contained in section 4(1).  While there has always been a tension between the practice of abortion by medics and its legal status, I extend the analysis to consider the current position of abortion provision at the margins of medical education and practice.  I consider the impact of the marginalisation of abortion within medical practice and medical education.  In the UK abortions are increasingly being performed outside of hospitals in specialist clinics.  Section 4(1) is one of only two statutory protections for clinician conscientious objection to an aspect of medical practice.  Despite being the most common surgical procedure that women undergo, abortion care is an optional part of the medical curriculum.  All of this highlights the way in which abortion provision is marginalised from mainstream medical care.  I ask what this now means for medicines on going professionalisation activities, and what this might mean for the future of abortion provision.


'Death on demand: In the public interest?'

Dr Richard Huxtable, University of Bristol

In this paper I consider the ways in which appeals to the public interest feature in, and influence, the jurisprudence governing assisted dying.  My main aim is to explore the different accounts of the public interest that are used, both overtly and covertly, in the relevant judgments.  Overt accounts of the public interest tend to be rare, although judges do occasionally make reference to (inter alia) the importance of preserving life, maintaining the integrity of the medical profession, and protecting innocent third parties.  I argue that there are three concepts of the public interest in play, which refer respectively to my interests, your interests and our interests.  Although each of these concepts could, in theory, be deployed in support of assisted dying, thus far the courts have proven resistant.  As such, first, the public interest in protecting my interests could incline the judiciary towards granting my assumed wish or need for assistance in dying, but to date the judges feel that "I want" should not mean that "I get", and that there is no need for the law to support such a practice.  Secondly, the public interest in protecting your interests tends towards upholding the sanctity of human life and protecting vulnerable others.  Of course, proponents of assisted dying insist that a safe system could be devised, in which the practice (and thus the affront to sanctity) is suitably confined and exceptional.  Finally, the public interest in protecting our interests invites reflection on the values said to be associated with our assumed collective interests.  Here too we find that concerns about the intrinsic value of life trump arguments premised on autonomy, as do claims regarding the proper role of health care professionals.  Although my goal is primarily to bring these different conceptions of the public interest to light, I close with some reflections on whether the law in this area strikes the right balance between the competing values at stake.


Session IV: Policy implications

'Power, politics and "proper medical treatment": The uses and misuses of mental health legislation'

Dr Julian Sheather, British Medical Association

In this presentation I give an account of a moment of political capture of health and medical treatment.  I describe in outline one part of the process by which the 1983 Mental Health Act came, eventually, to be amended by the Mental Health Act 2007, thereby giving us, for better or for worse, the mental health legislation that currently governs compulsory treatment of mentally disordered people in England and Wales.  This process sheds some light – some of it dark, if that isn't too much of a contradiction – on the kinds of pressure that the concept of 'medical treatment', proper or otherwise, can be subject to in the battlefield of contemporary realpolitik.  Mental health legislation is Byzantine in its complexity.  Partly for the sake of clarity, and partly because I came at this while working in the ethics department of the British Medical Association and was therefore limited in my focus, I want to look at just one aspect of the legislative changes: whether legislation should require a reasonable belief that therapeutic benefit can be given in relation to people diagnosed as suffering from personality disorder (PD).  I show the way in which public anxiety about the risk of harm presented by a very small number of mentally disordered individuals led to the effective coining of a new disorder – Dangerous Severe Personality Disorder.  I also show how mental health legislation was amended in order to facilitate the long term 'therapeutic' incarceration of individuals 'suffering' from this disorder, even in the face of considerable medical uncertainty, both about the nature of the disorder and whether it could be effectively 'treated'.


'"Proper medical treatment": An economist's perspective'

Professor Cam Donaldson, Yunus Chair in Social Business & Health, Glasgow Caledonian University

Most advanced economies operate publicly-funded health care systems, resourced through the allocation of fixed funding envelopes. Given this, the term 'proper', from an economics perspective, can then be equated to achieving the most benefit from limited resources, and two theoretical principles from economics can then usefully be brought to bear in deciding on the appropriateness of health interventions – opportunity cost and marginal analysis. In this paper, these will be described by use of a well-known example from the medical literature. Three sets of challenges will then be posed with respect to how to devise and implement decision-making frameworks based on these principles. These will be described in terms of challenges to clinicians and health care managers, as the main resource-influencers in health care systems, and to economists, with respect to how to deal with perceived limitations of efficiency-based frameworks based on the two principles initially referred to.

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