LAWYERS’ MEDICINE

Vol. 20 No. 7 (July, 2010) pp.283-286

LAWYERS’ MEDICINE: THE LEGISLATURE, THE COURTS, AND MEDICAL PRACTICE, 1760-2000, by Imogen Goold and Catherine Kelly (eds). Portland, OR: Hart Publishing 2009. 230pp. Paper. £30.00/$60.00. ISBN: 9781841138497.

Reviewed by Rebecca C. Harris, Department of Politics, Washington and Lee University. Email: harrisr [at] wlu.edu.

LAWYER’S MEDICINE is a collection of original research articles on the interaction of the medical profession and the law. The contributions arose out of a seminar series at the Wellcome Unit for the History of Medicine at Oxford (2007) for invited papers discussing the impact of legal regulation on the development of medical practice and medical theory from 1760-1990, with the published pieces extended to 2000 and beyond. Written largely by historians, each chapter presents analysis of primary legislative or judicial historical sources in the United Kingdom. While the medico-legal historical literature is quite rich (and appropriately well known by researchers presenting at the Wellcome Unit), the book sets itself apart through its focus on the interaction of law and medicine. This volume traces new territory by specifically examining twin interactions: the way doctors contributed to the development of law and policy and the way law and policy contributed to the practice of medicine. The time period is deliberately chosen by the editors because of the way medical profession and legal institutions underwent significant change in the past two centuries. The quite fascinating conclusion is that as both evolved one affected the other in politically and professionally significant ways.

The book begins with a comprehensive and analytical introductory essay by the editors. The importance of the topic and its purpose to link medical and legal history are set in perspective with other sub-disciplinary approaches and quite convincingly portrayed as an original and timely contribution to both subfields because of its focus on the interaction of the two. The essay is particularly strong at pointing to the dominant themes which emerge from the discrete chapters: the attempts of the medical profession to influence the legislative process designed to regulate medical practice and/or theory, and the “tensions” between legislative and judicial professions and medical professions arising from conflicting intellectual frameworks, vocabulary, and assumptions. As a scholar of biopolicy, I found this theme quite compelling for identifying the problems with regulation and science more generally.

The substantive chapters present case studies of law and medical interaction, and they are noteworthy for their breadth of medical and political practice. Medical education, public health and sanitation, disease treatment, criminal prosecution, reproductive regulation, and medical research are all included as cases studies. Likewise government work from the smallest municipal corporation to the work of parliament itself, as well as a variety of government commissions and regulatory bodies, is all present. Even the judicial work is delightfully expansive, from the Old Bailey Papers to the work of the high [*284] court. The comprehensive feel of the book is unusual in this field. The chapters are also noteworthy for their long view of policy development, with many chapters tracing policy development for 100 years or more. Even the most discrete investigation (Chapter 3, “Sanitation 1835-1838”) places its policy in a larger before-and-after context. Perhaps this is the strength of the historical approach -- time and timelines become important ways to understand social (here political) phenomena. An appreciation for this is often lost in the cross-section analysis of much political science work.

Here is a brief annotation of the chapters:

Chapter 2 (Catherine Kelly) examines the role of the medical profession in parliamentary inquiries regarding military medicine, opthalmia, and the plague. Kelly presents direct quotes of the proceedings and testimony as primary evidence.

Chapter 3 (James Hanley) examines the sanitary Bye Laws of municipal corporations newly empowered to make policy in their jurisdiction. This chapter also provides interesting evidence of the diffusion of policy among different jurisdictions working on the same problem, a political phenomenon with a solid literature in political science, yet perhaps unknown by Hanley.

Chapter 4 (Katherine D. Watson) examines the development of criminal law and its conflict with the medical community over the definition of a “wound.” The case of vitrol (sulphuric acid) throwing presents an interesting locus of exploration for law and medicine interaction. Watson traces the policy evolution and the contributions of the medical community to policy development.

Chapter 5 (Joel Peter Eigen) examines psychiatric testimony, particularly the conceptual and subsequent medical and legal understandings of terms such as delusion, moral insanity, melancholia, among other terms. His discussion shows a medical community and a legal community at odds, and yet wrestling within themselves as to how to handle the need for appropriate criminal prosecution of the mentally ill. Of particular interest to me was the way the judicial community initially viewed the medical community as an impediment to the goals of criminal prosecution.

Chapter 6 (Angus H. Ferguson) examines medical confidentiality in the context of venereal disease and public health policy development.

Chapter 7 (Roger Davidson) examines legislative and judicial policy formulation with regard to homosexuality and criminal justice in post WWII Scotland. Davidson’s chapter is noteworthy for his unusual access to court psychiatric records from the period.

Chapter 8 (Gayle Davis) examines the applications of the 1967 Medical Abortion Act, particularly comparing geographic variation in policy and practice.

Chapter 9 (Imogen Goold) traces the history of In Vitro Fertilization regulation in the UK, with particular interest in the medical and research community involvement. Her analysis is much more expansive than most of the [*285] other chapters, referencing the popular press and the role of popular notions in government policy formulation -- particularly a pervasive distrust of science itself. Goold’s extensive reporting of medical discussion in and outside of government offers many insights into the role of experts in policy development more generally.

Chapter 10 (Duncan Wilson) examines human tissue regulation in the UK from 1900-2004 and beyond. Like Goold, Wilson offers extensive bioethical discussions occurring in the greater profession, and the degree to which those disputes and concerns contributed to policy outcomes.

As the introduction argues, there are several important observations supported by historical analysis in the substantive chapters: (1) Doctors often resented government intrusion, but benefited because the regulation served to open government up to their influence (for example, in Chapter 2, doctors are testifying to a Select Committee of Parliament, and in Chapter 5, they are giving expert testimony to Old Bailey judicial proceedings, resulting in each influencing the trajectory of the other). (2) Internal disputes within the medical profession were exposed to legislative and judicial scrutiny, often with the result of political actors deciding which portion of the profession was correct via policymaking (for example, Chapter 2 introduces a debate on medical education, particularly for military doctors, and parliament chose to advance the “educational” hands-on model over the theoretical mastery as the most efficacious way to train and certify medical personnel. Chapter 4 discusses the profession’s conceptual and terminological debate on “wounds” which the law defined quite narrowly in criminal legislation. Chapter 7 notes the lack of consensus on the etiology of homosexuality, and Chapter 9 speaks of internal medical and researcher debates about IVF.) (3) The medical community was limited by political or legal conventions to engage the policy making process, often requiring a compromise of professional priorities (for example Chapter 5 portrays the medical insistence on moral insanity in the face of judges who denounced the idea that wickedness was a disease, with an eventual compromise of both professions). The introductory chapter is a must read for this book, as the editors provide themes and observations not readily accessible by reading the substantive chapter alone.

In terms of methodology, the historians examined professional literature, and legislative, administrative and judicial proceedings for evidence of the interactive changes for law and medicine over time. The strength of their research is in the thick description of multiple case studies within each chapter. Political scientists might be a bit overwhelmed at the repeated description of what exactly occurred, but that is the strength of the historical approach -- it records the history. As a social scientist, I felt this description presented many opportunities for the generation of theories and the testing of hypotheses.

The weakness of the chapters for political scientists will be the lack of analysis and theoretical cause-and-effect discussion. The substantive chapters present much raw reporting of medical and governmental work and very little analysis of the political meaning and [*286] implications of the historical findings. For instance, Chapter 2 tells the story of a series of parliamentary inquiries into medical conditions and events, but there is very little discussion to tie the observations together, beyond the barest introduction and conclusion. This was quite a difference from the sophisticated and marked analysis of the introduction. Indeed, there were a few chapters where it was necessary to re-read the introduction to find the general conclusions and implications of the substantive chapter. I would have liked more discussion and connection within the chapters, but one could also argue the introduction does the job of both orientation and conclusion. The general statements in concluding portions were not continually referred to in the body of the work of many chapters. There are a few exceptions. Joel Peter Eigen’s analysis of insanity defense (Chapter Five) tied description and discussion better than the proceeding chapters. His ability to conceptually tie his findings throughout his work made the case studies much more informative for me. It is telling, perhaps that Eigen is a fellow social scientist (sociology), and thus organizes his discussion in a way that can immediately interest social scientists. Ferguson (Chapter 6) and Goold (Chapter 9) likewise provided insightful discussion and analysis of their findings within their chapter.

In general, the book provides a rich record of policy process and development in the context of decisions affecting or requiring medical practice.

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