MEDICAL ETHICS AND MEDICAL LAW

Vol. 18 No. 2 (February, 2008) pp.109-112

MEDICAL ETHICS AND MEDICAL LAW: A SYMBIOTIC RELATIONSHIP, by José Miola. Oxford: Hart Publishing, 2007. 248pp. Paper. £25.00/$52.00. ISBN: 9781841135083.

Reviewed by Robert Dingwall, Institute for Science and Society, University of Nottingham, UK. Email: robert.dingwall [at] nottingham.ac.uk.

This book, by José Miola is a useful survey of current thinking in the field of law and medical ethics in the UK – or, more precisely, in England and Wales, since the Scottish medical and legal systems are increasingly diverging to a degree that makes any generalization unwise. However, it reminds me of the proverbial curate’s egg. For US readers unfamiliar with the idiom, it refers to a famous English cartoon from the nineteenth century. A young curate (think assistant professor without tenure) is having breakfast with his bishop (think chair of the tenure committee). However, his boiled egg is rotten. When the bishop asks what the curate thinks of this stinking egg, the young man replies: “Parts of it are quite excellent.” MEDICAL ETHICS AND MEDICAL LAW is certainly not a stinker, and it would be unfair to suggest that it was. Anyone reading it will learn something useful about recent cases and the way that people think within the paradigm from which the author is writing. However, they will also see abundant evidence of the narrowness and complacency of this paradigm. It would not be fair to single out an early career scholar for sticking within this – think of the curate’s dilemma in responding to the bishop who controls his career track – but this would not be a responsible review if it did not at least note some of these generic problems.

The book begins from the iconic event of the Bristol Royal Infirmary Inquiry, which reported in 2001. This inquiry was chaired by Professor Ian Kennedy, a prominent academic medical lawyer, and investigated a series of deaths during pediatric cardiac surgery at the Bristol Royal Infirmary between 1984 and 1995. The report is a very substantial document, but Miola summarizes its conclusions as demonstrating that cultural flaws in medicine, combined with excessive professional autonomy and regulatory failure, had produced this outcome. The remedy was legal intervention to compel more ethical practice. This is certainly a point of view. However, there are some problems with this account. First, Professor Kennedy had been advocating this analysis since the 1970s, exemplified by his Reith Lectures for BBC Radio in 1980, published as UNMASKING MEDICINE in 1981. In a review essay, Eliot Freidson (1982) described the overall tone as ‘one of doctor-bashing, science-baiting and machine-smashing’ and, in subsequent conversations with this reviewer, suggested that writing this essay had been quite influential in turning his own attention towards a more nuanced account of medicine and the position of doctors, having seen where his own (Freidson 1970) radical critique of professional autonomy might lead. Secondly, as Weick and Sutcliffe (2003) [*110] and others have pointed out, the conclusions of the Inquiry are rather weakly connected to the evidence, at least as it would be understood by major figures in the field of organizational studies. There is, then, at least an arguable case that those who appointed Kennedy to chair the inquiry had a particular outcome firmly in mind and that the process was a vehicle for the pursuit of their interests. A more reflexive account might have thought it worth asking whether this process was quite so self-evidently disinterested. Could it actually be the case that both Professor Kennedy and the present author are engaged in the same project, which we might call the ‘legalization of society’ in competition with the ‘medicalization of society’ and that it might be reasonable for those of us who are neither lawyers nor physicians to ask why one might be preferable to the other?

This notion of a legalization project is nicely illustrated by the historical chapter. There used to be a time when all books written by professionals about the history of their own profession began with a chapter on their profession in the classical world, regardless of the dangers of anachronism or Whig history. Social scientists and historians have come to regard these as more indicative of modes of legitimation rather than as scholarly contributions. In a certain time and place, an origin myth tracing the profession to Ancient Greece or Rome authorized the profession’s place within a social and cultural elite. It is interesting that this trope is still thought to have power in English academic law, although it is certainly waning in medicine, where there is rather more awareness of the scholarship that has questioned the existence of a historical Hippocrates, as opposed to a rather loosely bound school of natural philosophers, and about the idea of anything that is recognizable as the prototype of a medical profession in a modern sense. After Hippocrates and Plato, the book skips almost two thousand years as if there is nothing worthwhile to be said about medical ethics in the meantime. Eighteenth century medicine, for example, is discussed as if it were governed only by the principles of Adam Smith’s marketplace. In WEALTH OF NATIONS, Smith, himself, actually discusses the behavior of physicians in some detail and why it is not appropriate to apply simple market principles to them since they must behave in ways that inspire trust in their patients rather than maximizing their short-run economic interests. Nor is there any reference to the extensive debates about medical ethics in late 19th century Germany or early 20th century America as the project of scientific medicine began to take hold and recognizably modern forms of professional organization were established.

This lack of historical sensibility is also evident in the way in which the Nuremburg Medical Trial, and the Code presented in the judgment, is treated as a self-evident foundation for legal and bioethical intervention in medicine. This has not yet been analyzed in great detail, but it might be observed that the Manchester GUARDIAN, then as now, England’s leading liberal newspaper, did not actually report the trial at all. Their first reference is to a delegation from the BMA – the UK equivalent of the AMA - going off to draft what became the Declaration of Geneva, where the Nazi [*111] doctors’ behavior was presented as something for the profession itself to sort out. When the GMC, the licensing board for UK doctors, was asked in 1952 to consider requiring UK medical graduates to affirm their adherence to the principles of that Declaration, it took the view that this was unnecessary because of the moral socialization they would have experienced during their education. The next references come in the 1960s, when they are associated with other developments in response to concerns about research ethics rather than clinical ethics. The Nuremberg Code, then, may serve more as a powerful legitimating symbol for the pursuit of certain professionalizing or jurisdiction-expanding interests than as a historical document. It should, perhaps, also be observed that this story about Nuremberg ignores the extent to which 1930s Germany had the most sophisticated regulatory regime for research governance in any developed country, built up over a period of nearly fifty years. What the Trial may really be documenting is not the need for regulation but the failure of an approach based mainly in regulation.

Now some of this work is not yet in public print so it is not entirely fair to expect Miola to be aware of all the details. However, it is reasonable to ask that, before asserting the centrality of the Nuremberg Medical Trial to subsequent developments in medical ethics, the author might ask what evidence there is to justify this claim, and display a modicum of skepticism if this cannot be located.

Similar unexamined assumptions litter the account. How far does medicine actually have the degree of professional and cultural dominance that is asserted? This has been energetically debated by medical sociologists since Strong’s (1979) attack on the medicalization thesis. Research on medication use, for example, reveals quite staggering levels of non-adherence to prescribed regimes. Officially sanctioned medicine in the US and UK co-exists with a wide range of rival healing systems and their practitioners. Is it correct to assume that where there is no law, there is no restraint on professional behavior? Have the informal sanctions of traditional societies really been so totally extinguished, whether they are operated by patients or by peers? Is the importance of trust in the marketplace for healing any less than it was when Adam Smith wrote about it? Is autonomy such a cardinal virtue in health care when so much of it is funded by collective institutions, whether tax or insurance based? Do those paying into the systems not have some right to expect that their money will be spent in ways that are effective and efficient rather than simply reflecting the whims of those drawing support? Are there no collective interests in public health that may justify constraining individual choices?

Ultimately, this book can also be read as a text in the professional project of medical law and ethics and its desire to expand its jurisdiction at the expense of medicine. In another classic essay, Strong (1984) commented on the way in which the wealth of contemporary medicine attracted other disciplines and professions, like bees to a honeypot, in the hope of gaining a share of these resources. Law and medicine are rivals in the business of social control. The German poet Goethe, writing in 1787, [*112] feared that the world would become one large hospital with each the humane nurse of the other. I sometimes think that we should equally fear a world that is one huge courthouse, where each tenaciously pursues the rights of the other. The art of the political scientist may well be to manage the tension between these two pathologies, understanding the loss of human dignity in Goethe’s world of unchecked compassion and the loss of human sensibility in Miola’s world of unchecked rights.

Read this book as a useful contemporary guide to thinking in English medical law and ethics. Reflect on it as a vehicle for jurisdictional claims and ask yourself to what degree these really would usher in a better world.

REFERENCES:

Freidson, Eliot. 1970. PROFESSION OF MEDICINE. New York: Dodd, Mead.

Freidson, Eliot. 1982. “Review Essay: Kennedy’s Masked Future.” 4 SOCIOLOGY OF HEALTH & ILLNESS 95-97.

Kennedy, Ian. 1981. UNMASKING MEDICINE. London: Allen and Unwin.

Strong, Philip M. 1979. “Sociological Imperialism and the Profession of Medicine: A Critical Examination of the Thesis of Medical Imperialism.” 13A SOCIAL SCIENCE AND MEDICINE 199-215.

Strong, Philip M. 1984. “Viewpoint: The Academic Encirclement of Medicine.” 6 SOCIOLOGY OF HEALTH & ILLNESS 339-358.

Weick, Karl E., and Kathleen M. Sutcliffe. 2003. “Hospitals as Cultures of Entrapment: A Re-Analysis of the Bristol Royal Infirmary.” 45 CALIFORNIA MANAGEMENT REVIEW 73-84.

Right Reverend Host: “I’m afraid you’ve got a bad egg, Mr. Jones!”

The Curate: “Oh no, my Lord, I assure you ! Parts of it are excellent!”

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