Charles Foster

“Please Don’t Tell Me”: The Right Not to Know

Knowledge is generally a good thing. People who know lots of bits of information are generally admired. Some of them win prizes in TV competitions. If you were offered the gift of having an entire encyclopedia wired into your brain, you would probably accept, without thinking. But we should be wary of assuming that all knowledge is good. Too much knowledge can inhibit rather than enable thought.

The revised Declaration of Helsinki: cosmetic or real change?:

The Declaration of Helsinki, adopted by the World Medical Association’s General Assembly in 1964, is the most important set of guidelines about research on human participants. It both reflects and shapes the ethos of international research ethics. It is a living instrument and is reviewed and revised regularly. Its latest revision was in 2013. There are four substantial changes, reflected in the new Paragraph 15 (which deals with compensation for trial related injuries), Paragraph 33 (relating to placebos), Paragraph 20 (relating to vulnerable groups) and the new Paragraph 34 (relating to post-trial provisions). This article analyses these changes, and asks whether they indicate any shift in the overall philosophy of the Declaration. We conclude that these changes, though significant, are not tectonic. They accord with the spirit that has motivated the Declaration through all its iterations, and indicate a steady, incremental evolution towards a holistic code of research ethics for research on human participants. Patient autonomy, though crucial, is no longer the only concern of the Declaration; distributive justice and beneficence are motivating forces too. While the Declaration is aware of the need to facilitate research, it is equally aware of the need to protect the vulnerable, and of the practical difficulties involved in that protection.

Dignity and the ownership and use of body parts.

Property-based models of the ownership of body parts are common. They are inadequate. They fail to deal satisfactorily with many important problems, and even when they do work, they rely on ideas that have to be derived from deeper, usually unacknowledged principles. This article proposes that the parent principle is always human dignity, and that one will get more satisfactory answers if one interrogates the older, wiser parent instead of the younger, callow offspring. But human dignity has a credibility problem. It is often seen as hopelessly amorphous or incurably theological. These accusations are often just. But a more thorough exegesis exculpates dignity and gives it its proper place at the fountainhead of bioethics. Dignity is objective human thriving. Thriving considerations can and should be applied to dead people as well as live ones. To use dignity properly, the unit of bioethical analysis needs to be the whole transaction rather than (for instance) the doctor-patient relationship. The dignity interests of all the stakeholders are assessed in a sort of utilitarianism. Its use in relation to body part ownership is demonstrated. Article 8(1) of the European Convention of Human Rights endorses and mandates this approach.

Testing the limits of the ‘joint account’ model of genetic information: a legal thought experiment

We examine the likely reception in the courtroom of the ‘joint account’ model of genetic confidentiality. We conclude that the model, as modified by Gilbar and others, is workable and reflects, better than more conventional legal approaches, both the biological and psychological realities and the obligations owed under Articles 8 and 10 of the European Convention on Human Rights (ECHR).

Autonomy in the medico-legal courtroom: a principle fit for purpose?

This article examines the way that the principle of autonomy is handled in (mostly English) law. The law pays loud lip-service to autonomy, saying that it is the governing principle in many areas. This is particularly true for cases involving bioethics. The courts are rarely philosophically explicit about which account of autonomy is favoured, but three accounts (Millian self-determination, Kantian deontology, and relational autonomy-in which the social nexus of the subject is explicitly recognised) can be identified. Despite the laws traditional rhetorical insistence that autonomy rules absolutely, that rule is, in practice, unworkable. Other principles, such as beneficence and dignity, have to be drafted in to help. Much of the philosophical work that autonomy should do in the law is delegated to the notion of capacity, but that notion too is insufficiently examined by the courts, and is problematic.

Who's in Charge? The Relationship between Medical Law, Medical Ethics and Medical Morality

Medical law inevitably involves decision-making, but the types of decisions that need to be made vary in nature, from those that are purely technical to others that contain an inherent ethical content. In this paper we identify the different types of decisions that need to be made, and explore whether the law, the medical profession, or the individual doctor is best placed to make them. We also argue that the law has failed in its duty to create a coherent foundation from which such decision-making might properly be regulated, and this has resulted in a haphazard legal framework that contains no consistency. We continue by examining various medico-legal topics in relation to these issues before ending by considering the risk of demoralisation.

Dignity and the use of body parts

This paper contends that the conventional ethical and legal ways of analysing the wrong involved in the misuse of human body parts are inadequate, and should be replaced with an analysis based on human dignity. It examines the various ways in which dignity has been understood, outlines many of the criticisms made of those ways (agreeing with many of the criticisms), and proposes a new way of seeing dignity which is exegetically consonant with the way in which dignity has been historically understood, and yet avoids the pitfalls which have led to dignity being dismissed by many as hopelessly amorphous or incurably theological. The account of dignity proposed is broadly Aristotelian. It defines dignity in terms of human thriving, and presupposes that it is possible, at least in principle, to determine empirically what makes humans thrive. It contends that humans are quintessentially relational animals, and that it is not possible (and certainly not ethically desirable) to define humans as atomistic entities. One important corollary of this is that when using dignity/thriving as a criterion for determining the ethical acceptability of a proposed action or inaction, one should ask not merely how the dignity interests of the patient (for instance) would be affected, but how the dignity interests of all stakeholders would be affected. The business of ethics is then the business of auditing all those interests, and determining the course of action which would maximise the amount of thriving in the world.

The Double Effect Effect

The “doctrine of double effect” has a pleasing ring to it. It is regarded by some as the cornerstone of any sound approach to end-of-life issues and by others as religious mumbo jumbo. Discussions about “the doctrine” often generate more heat than light. They are often conducted at cross-purposes and laced with footnotes from Leviticus.

Harm: as indeterminate as ‘best interests’, but useful for triage

Birchley,1 Wilkinson and Nair,2 and McDougall3, all in this issue, do not sufficiently acknowledge the nature of the ‘harm’ threshold as it is used in English law. Where it occurs, it is intended to be used as a triage test to determine whether or not the court should go on to undertake a more thorough, nuanced, holistic best interests determination. Triage tests are, by their nature, rough and quick. They embody rules of thumb to an extent unacceptable in substantive determinations. It is rather unfair to criticise a triage test for not having a degree of sophistication to which it does not and should not aspire. The notion of the harm threshold is only applied by the court where a care or supervision order is being considered.4 In Re J (Children) , one of the leading cases considering the issue, Lady Hale, giving the main judgement in the Supreme Court, observed that: “In a free society, it is a serious thing indeed for the state compulsorily to remove a child from his family of birth. Interference with the right to respect for family life, protected by article 8 of the European Convention on Human Rights, can only be justified by a pressing social need.”5 That, of course, is precisely the concern that underlies Diekemas advocacy of the harm threshold.6 Lady Hale went on:‘How then is the law to protect the …

Don't Throw Out the Baby of Autonomy: Talk to the Mother Instead

Beever and Morar (2016) demonstrate convincingly that all conceptions of autonomy are built on metaphysical and biological sand. Humans are ecosystems: I am the nexus of relationships in which I ex...