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Wall, Jesse --- "Introduction" [2016] OtaLawFS 21; Law, ethics, and medicine: essays in honour of Peter Skegg 1

Last Updated: 31 May 2019

Jesse Wall

This collection brings together contemporaries, colleagues, and former students of Professor Peter Skegg to celebrate his enduring contribution to the study of medical law. Through decades of rigorous and insightful scholarship Peter has helped develop the field of medical law into a burgeoning academic discipline and has provided intellectual guardianship for the practice of law and medicine. For this, his peers and apprentices are in debt to Peter for how enriched we have become through his scholarship and teaching. These essays go but a very small way towards repaying that debt, and are a small way of honouring Peter’s outstanding work.

Whilst some of the essays return to territory that has been initially surveyed by Peter’s research and analysis, others touch upon some wider medical law topics, illustrating Peter’s lasting contribution to medical law as well as mapping out some of the new frontiers for the discipline of medical law. In this introduction I provide brief accounts of each essay in the hope that you will find this collection of essays to be both an engaging body of work as well as a fitting tribute to such an exceptional academic, colleague, and friend.

To start, Margaret Brazier (in her essay ‘The Criminal Process and Medical Practitioners’) discusses the modern perception of the criminal process ‘as a threat to medicine’. Although concerns about ‘the impact of prosecutions for medical manslaughter should not be lightly dismissed’, Brazier suggests that such concerns need to be ‘grounded on hard evidence that resort to the criminal process was damaging patient care’. Moreover, such objections to prosecutions for medical manslaughter ought to also be grounded in ‘evidence that health professionals who face prosecution for gross negligent manslaughter are in fact facing criminal liability for errors that indicate little by way of moral culpability’. For Brazier, the criminal process is no longer a shield behind which the healthcare profession can hide, nor is the criminal process ‘a sword held to the doctor’s throat’. Instead, health professionals are ‘caught in the crossfire of philosophical debate on the role of the criminal law in relation to negligently inflicted injury’.

Jonathan Herring (in his essay ‘Peter Skegg and The Question No-One Asks’) provides an analysis of the presumption of competence to consent that was sparked by Peter Skegg’s observation that ‘the presumption ... has proceeded

without consideration of a clinician’s duty of care towards a patient’. This raises a fundamental question of ‘why in the medical context should we presume people have capacity?’ Herring finds support for Skegg’s conclusion that the presumption is ambiguous and impractical, and considers further whether the presumption can be justified. Whilst the presumption cannot be justified as a statistical claim nor as a means of vindicating patients’ rights, Herring suggests ‘that if consent is understood in relational terms’, and if consent follows ‘an appropriate doctor-patient interchange’, consent can be relied upon to authorise treatment.

Loane Skene (in her essay ‘Proprietary Rights in Human Bodily Material’) considers ‘recent developments in the law relating to the legal status of human bodily material’ in light of Professor Skegg’s early research on the subject. As Skene explains, Skegg’s account in 1975 was that ‘the courts’ decisions in this area have been piecemeal and even the higher courts have been reluctant to undertake a wider review of underlying principles of property law’. Consistent with Skegg’s early observations, this essays explains how recent judicial decisions have been limited ‘to the principles necessary to decide the cases before them’, whilst other areas of law-making ‘are limited by their terms of reference’ to specific legal or ethical issues. For Skene, this suggests ‘that only the academic community has the will and the resources to undertake the gargantuan task of wide-scope review and analysis, following in the tradition of Professor Skegg’.

As John Keown (in his essay ‘Debating Euthanasia’) notes, ‘whether the criminal law should permit voluntary euthanasia and/or physician-assisted suicide is one of the most important ethical debates in developed nations’. Keown, in his contribution to this collection, develops six criticisms of the position held by renowned proponent of euthanasia and physician-assisted suicide, Professor Emily Jackson. According to Keown, Jackson fails to: advance a consistent ethical case for voluntary euthanasia, rebut the core principle of the ‘inviolability of human life’, rebut the distinction between intention and foresight, give an adequate answer to the logic of the slippery slope argument, give an answer to the empirical support for the slippery slope argument, and defend ‘a concrete proposal for the relaxation of the law’.

Trudo Lemmens and Elizabeth Kurz (in their essay ‘The Future of Medically Hastened Death in Canada’) explain the legislative options in the wake of the decision in Carter v AG Canada. The options are a choice between a narrow regime ‘that allows physicians to provide direct assistance in dying only to people who are at the end of life or with irreversibly declining capabilities’ or a broader regime that provides wide access to physician assisted death primarily on the basis of individual choice. As Lemmens and Kurz explain, the legislative models in Belgium and the Netherlands stand for the broader, rights-based approach and

‘vest significant powers and responsibilities in the hands of physicians’. Their concern is that such regimes ‘largely rely on post-factum reporting and a limited review of the appropriateness of the practice’ whilst also evoking ‘a culture of normalization of life-ending interventions by physicians’. Hence, Lemmens and Kurz call for a cautious legislative response that introduces a ‘strict regulatory regime that narrows the conditions under which euthanasia can be requested and that contains both a pre- and post-factum review, amongst other procedural safeguards’.

Marie Bismark (in her essay ‘Lifting Our Gaze’) encourages us to look ‘beyond individual cases and anecdotes’ and take ‘an epidemiologist’s view of medico-legal processes’. This contention is premised upon an account of ‘the harm caused by those who are tasked with healing’ and the medico-legal responses that have been developed to provide accountability of such harm. Bismark also considers the perception that medical-legal processes both go too far and do too little at the same time. The solution offered is a regulatory approach that is informed by analyses that can ‘make sense of the data’ that is collected ‘at a population level’. As Bismark explains, ‘just as evidence-based medicine integrates an individual’s skills and assessment with the best available evidence from medical research, so too should evidence-based policy’. The suggestion is that an ‘epidemiological approach to medico-legal data’ will ‘complement and enhance medico-legal agencies’ existing efforts to support practitioners and protect patients from harm’.

Josephine Johnston (in her essay ‘If Thy Leg Offend Thee, Cut If Off’) discusses the legal justification for surgery by considering the legality of healthy limb amputations. The analysis suggests that ‘healthy limb amputations and other major surgeries fall within a class of acts that will be considered crimes in New Zealand regardless of whether the amputee consented to the procedure unless these operations can be said to be “reasonable” surgery or surgery performed for a “lawful purpose”’. Because of this, ‘amputee wannabes’ have sought over the past decade and a half ‘to have their desire recognized as a mental disorder and amputation accepted as a safe and effective treatment.’ For amputee wannabes without a mental disorder diagnosis, amputation will amount to ‘an assault causing grievous bodily harm, regardless of whether the amputee wannabe consents to the operation’ which, as Johnston explains, ‘reveals significant limits to the degree of bodily self-determination that the law is willing to recognize.’

Joanna Manning (in her essay ‘Without Legal Commitment’) ‘addresses the unacceptable situation in which subjects injured in commercially sponsored clinical trials in New Zealand’ are excluded from statutory entitlements of compensation and must rely on the sponsors’ obligation to pay compensation (which is ‘without legal commitment’). Whilst accepting that compensation on a ‘no fault’ basis is

the best ethical response to research-related injuries, Manning contends that the Guidelines that govern the provision of compensation fail to require adequate information to be provided to the research participants, do not require a level of compensation equivalent to the entitlements under accident compensation legislation, and are ultimately legally unenforceable. The solution lies in bringing ‘injuries suffered by participants in commercially sponsored clinical trials back within statutory accident compensation cover, in order to provide equal access to legally enforceable, timely, and fair compensation, as with all other injured participants in clinical research’.

Nicola Peart (in her essay ‘Health and Disability Research Ethics Committees in New Zealand’) asks whether the current ethical review system is adequate to prevent another instance of ‘shocking abuse of the doctor-patient relationship’ akin to the events at the National Women’s Hospital. Peart concludes that ‘the radical reforms to the ethical review system in 2012 make the chance of another ‘unfortunate experiment’ more likely, but only slightly so’. This assessment of the current ethical review system is provided against the backdrop of an account of the ethical review systems in place at the time of the ‘unfortunate experiment’ at the National Women’s Hospital, how the recommendations of the Cartwright Inquiry were implemented, and how the review systems have been reformed.

John Dawson (in his essay ‘The Powers Conferred by Community Treatment Orders’) analyses ‘the scope of the powers conferred by New Zealand’s mental health legislation to supervise the treatment of compulsory psychiatric patients outside hospital under a Community Treatment Order.’ In particular, whether legislation authorises physical restraint of a patient outside hospital, can require a patient to live full-time at a specified community residence, or authorises the preventative recall of a patient to hospital in the absence of an emergency or the patient’s acceptance of the treatment. This analysis of the boundaries of Community Treatment Orders ‘brings out certain features of our mental health laws’ and provides ‘important messages about the interpretation of mental health legislation’.

Mark Henaghan, Ruth Ballantyne, and Devon Helm (in their essay ‘Genes Versus Gestation’) argue that the surrogate mother is extremely vunerable during pregnancy and immediately after the birth process, and that her interests during this time should be given priority over those of the commissioning genetic parents. The argument is consistent with principle 4(c) of the Human Assisted Reproductive Technology Act 2004 which says that women more than men are directly and significantly affected by assisted reproductive procedures. The health and well-being of women must be protected by these procedures. It is

also consistent with the general common law position of prioritising pregnant mothers’ decisions about their well-being.

In my chapter (‘In What Sense ‘Rights’?’) explores a query originally posed by Peter Skegg. Under the heading ‘In What Sense Rights?’ Peter Skegg noted with regards to the Code of Patients’ Rights that ‘only a tiny proportion of aggrieved consumers can in practice obtain damages, or any other legal remedy, in consequence of even an admitted breach of Code’. In response to this, I contend ‘that the Code of Patients’ Rights does contain ‘rights’, but the rights in the Code exist in isolation’ from any conception of justice. Since the Code is concerned with objective standards, the Code cannot engage a principle of retributive justice, and since breaches of Code are partitioned from the consequences of the breach, the Code cannot engage a principle of corrective justice. Rather, the Code is a pragmatic response to a vacuum in the law left by the shift towards viewing personal injuries as a matter of distributive justice. Understanding the Code in this way ‘explains why the remedial response to an infringement of a right contained in the Code is so minimal’, and hence why Peter Skegg is right to question their status as ‘rights’.

Mark Henaghan and I would like to thank each of these authors for their thoughtful and engaging contribution to this book. We would also like to express our gratitude to the members of the New Zealand Law Foundation Trust Board and its Executive Director, Lynda Hagen, for the Foundation’s financial support of this project. We are also appreciative of Kyla Mullen’s skilled editorial work in preparing these chapters for publication, and grateful for the support of Thomson Reuters and, in particular, Ian McIntosh for his patience and commitment to this collection.