Medicine and the Rule of Law

Medicine and the Rule of Law Speaker: Sir Montgomery Date: Mar 27, 2024 Outline - Medicine 'under' the Law? - The Rule of Law and the role of rules - Ethical issues and the Separation of Powers - Law-making and the Doctrine of Precedent - The Discipline of Law The Bolam Test - 'A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art' Bell V Tavistock: Politics Through The Courts? - Significant extra-legal campaign against GIDS • - Whistleblower • - Industrial Tribunal Care Quality Commission inspection • - Media, complaints to Health Research Authority Poor access, poor record keeping, including consent NHS commissioning • Service Specification (NICE review) limited to research • Cass Review Bell V Tavistock: Judicial Assessments - 'Highly unlikely' 13 or under would be competent to consent... 'doubtful' 14 or 15 could understand and weigh the long-term risks and consequences - 'In our judgment, whilst driven by the very best of intentions, the Divisional Court imposed [an improper] restriction [on the Gillick test of competence], by the utilization of age criteria and by the requirement to make applications to the court.' [2021] EWCA Civ 1363 [94] The Best Interest Test... - Sir Ian Kennedy: • 'Is not really a test at all... In fact, of course, there is no general principle other than the empty rhetoric of best interests; or rather, there is some principle (or principles) but the court is not telling... Only the conclusion is set out... If.... this prior process of evaluation and analysis, and the factors underlying it, go unstated, accountability cannot exist. In effect, the law abdicates its responsibility. Decisions cannot readily be challenged. Discretion becomes virtually unfettered.' 'Christian Concern' - 'Cases of this kind are not decided under any written law. They are decided based on the judge's opinion, and whatsoever the judge thinks to be in the child's best interests is given the force of law. This is not a rule of law as we understand it - this is, rightly or wrongly, an absolute power of a human being who is a judge to rule over the life and death of another person.' - On Gard: 'in law it was ultimately a matter for an organ of the State, namely the Family Division of the High Court. The parents' decision was, so to speak, nationalized'. We can all make mistakes.... Power under the law - Hospitals cannot override parents • Must take cases to court when parents object - Parents and the child have lawyers and experts - Evidence is tested, investigations can be ordered - The judge assesses evidence & decides what is in the best interests of the child - Parties can appeal and test whether the judge's opinion is sound (facts and law treated differently) - If new evidence emerges, they can take matters back to court When Does Optimism Become A Lie? - Judge: All other doctors 'prospect of benefit effectively zero' - Expert accepted in court 'that his opinion was based purely on theory, with no clinical evidence to support it' (11/4/17) - Wrote to parents 'I expect that therapy will be beneficial. In the best-case scenario, Charlie's condition would stabilize, improve partially or continue to improve with longterm therapy as we have seen with patients with TK2' (22/5/17) False Testimony & Bad advice - Visited hospital covertly - Wrongly claimed to have seen notes (contempt of court?) - Offered dangerous opinion - Unqualified legal advice • - Emotive rhetoric rather than legal argument Subverts due process and access to the law Key Issues - Equality of Arms • Legal Aid, Costs • Specialist Lawyers - Intervenors - Openness and Transparency • 'The Court of Public Opinion' - Patterns, Principles and Precedents • Challenges of Epistemic Justice Eleven Court Rulings over Eighteen Weeks - Testimonial Injustice? - Hermeneutic Injustice? Separation of Powers - Airedale NHS Trust v Bland [1993] 1 FLR 1026, 105, Lord Browne-Wilkinson • 'The moral, social and legal issues raised by this case should be considered by Parliament. The judges' function in this area of the law should be to apply the principles which society, through the democratic process, adopts, not to impose their standards on society' Separation of Powers in the UKSC & HL - Pretty [2001-2002] • HL Not a Human Rights issue, ECHR Art 8 engaged but proportionate within margin of appreciation - Purdy [2009] • - Nicklinson [2014] • - Insufficiently precise to be 'in accordance with the law' Court competent but institutionally inappropriate Re: N. Ireland Human Rights Comm [2018] • 'Abortion... a matter on which the courts are as well qualified to judge as the legislature, if not better qualified' - Conway [2018] • Insufficient prospects of success to hear appeal Conway's Explanation - No-one doubts that the issue is of transcendent public importance [5] .... No-one doubts that the issue raises arguable points of law [6] .... These are questions upon which the considered opinions of conscientious judges may legitimately differ. Indeed, they differ amongst the members of this panel [7] .... the question... is whether the prospects of Mr. Conway's succeeding in his claim are sufficient to justify our giving him permission to pursue it.... in this case those prospects are not sufficient [8]. Informed Consent under Montgomery [2015] - Scope of medical expertise: 'an exercise of professional skill and judgment' (Bolam) - Scope of rights: 'Responsibility for determining the nature and extent of a person's rights rests with the courts, not with the medical professions.' The Bolam Test - 'A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art' The New Test (NB also therapeutic privilege) - The doctor is ... under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. [87] Rationale.... Scope of medical expertise: - [82]...fundamental distinction between, on the one hand, the doctor's role when considering possible investigatory or treatment options and, on the other, her role in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved. - [83]. The former role is an exercise of professional skill and judgment: what risks of injury are involved in an operation, for example, is a matter falling within the expertise of members of the medical profession.... - It is also true that the doctor must necessarily make a judgment as to how best to explain the risks to the patient, and that providing an effective explanation may require skill. But the skill and judgment required are not of the kind with which the Bolam test is concerned; [85] - and the need for that kind of skill and judgment does not entail that the question whether to explain the risks at all is normally a matter for the judgment of the doctor. [95] Post-Montgomery Case Law: 4 Steps 1. Identify Options (clinical judgment - Bolam) 2. Identify Associated Risks (clinical judgment - Bolam as per McCulloch) 3. Whether to advise (Montgomery) 4. How to advise (clinical judgment but not Bolam?) Informed Consent - Legal Fairy Stories? - - - Lawyers in denial? • The reception of Sidaway • The persistence of Bolam Lawyers in a rush? • Clutching at straws (Pearce) • Building on sand (Chester) Method in the madness? (Montgomery) • The disciplines of the appellate jurisdiction • Precedent in the Supreme Court  Revolution or Evolution? The way forward for Rule of Law Values... - When Lawyers show a little Humility & attend to - The Virtues of due process - The Wisdom of complementary powers - • Judges and Legislators • Judges and Clinicians Then the Rule of Law is not merely rule by lawyers and we can champion it with Honor