Book Review: “Ethical Judgments – Re-Writing Medical Law”

Ethical Judgments: Re-Writing Medical Law (ed. Stephen W Smith, John Coggon, Clark Hobson, Richard Huxtable, Sheelagh McGuinness, José Miola and Mary Neal, Bloomsbury, 2017, paperback and ebook, £40.00)

This edited volume takes on an ambitious task, namely to revisit some of the core decisions in English medical law and to place them into a world in which decisions by judges have to be ethically as well as legally valid.  To that end, and in each of the nine cases selected, two academic lawyers provided short (3,000 word) judgments, followed by a legal commentary and an ethical commentary.

There is undoubtedly an aspect of the academic parlour game about this exercise, and it is clear that Lord Montgomery of Botley (aka Jonathan Montgomery), say, or Lady Devaney of Preston (aka Sarah Devaney) have relished playing judge.  However, there is a very serious purpose underlying the project, namely trying to tease out, through the prism of real cases, how judges seek to apply ethical concepts in grappling with medical cases in circumstances where not only are judges not given specific ethical training, but English legal tradition (at least) has its face set against the introduction of specific ethical considerations or reasoning.

The book is full of thought-provoking nuggets and I found, for instance the judgment of Lord Smith of Erie (Stephen W Smith) that the Official Solicitor’s appeal in Bland stimulating in the way only the best counter-factual history can be.  However, I must confess to a slight feeling of frustration that both the selection of the cases (and indeed the comments upon the cases) gave the incorrect impression that medical law – broadly defined – has stayed still over the past decade.  With the notable exception of Nicklinson, none of the cases were decided later than 2006, and one might legitimately question why, say, Bolitho was included in the selection at the expense of Montgomery.  Of course, to some extent, the exercise that the editors and contributors were engaged in is one that is not time-specific and there is undoubted value in revisiting “oldies but goodies” such as the direction given by Macnaghten J to the jury in R v Bourne in 1939, where sufficient time has passed to lend distance and perspective.

However, and at the risk of sounding parochial, I must register particular disappointment at the near-total lack of mention of the MCA 2005.  Even if a case such as Aintree or the DD caesarean-section and sterilisation saga) did not merit a full counter-factual judgment approach, it was to me surprising that Aintree does not even appear in the commentary on Bland (or indeed in the table of cases at all).  This was undoubtedly not for lack of expertise amongst the editorial team, including as it does several who have written thought-provokingly on the MCA.  It must, therefore, have been a deliberate decision, but for my part it is one that I regret.

Overall, however, this is a book that serves admirably to stimulate thought – even if one of the main thoughts that it stimulated in this reader’s mind is that (as tacitly and somewhat ruefully recognised in the introduction) it is very much more difficult to be a judge than to be a commentator.

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