John Coggon

Beyond the is/ought divide: studying the nature of the bioethical enterprise.

This journal special issue, with five papers from an impressively multi-disciplinary authorship, follows a conference hosted in Manchester by the Institute for Science, Ethics, and Innovation that examined methods in bioethics. The discussions at that meeting focused on questions of inter-, multi-, post-, pan-, and trans-disciplinarity, and necessarily led to deep reflection on the very nature and value of bioethics itself: reinvigorating questions about methods seemed impossible without also exploring questions of scholarly identity and self-reflection. As such, the short discussion in this editorial, and the much more engaged arguments in the papers that follow, are advanced as a contribution to the growing literature that examines what we, as bioethics scholars in the field, do, and how we go about doing it. The publication comes at a time when questions of methodology and disciplinarity are achieving increasing prominence. Much of this attention has focused in particular on the role of empirical research in bioethics; the apparent emergence of the ‘empirical turn’. This gives rise to questions about the is/ought divide, of whether there can be such a thing as ‘empirical ethics’, of what exactly such an endeavour might consist in, and what the proper place is of the social sciences, especially sociology, within bioethics. Yet the problems of definition, scope, aims and approach that scholars in bioethics are currently facing go beyond a simple disciplinary binary or rivalry, to more profound exploration of the very nature of the bioethical enterprise itself. Indeed, scholars are coming to question whether it is even coherent to talk of the bioethical enterprise.

Health Care Analysis: Advancing Discourses Between Philosophy, Health, and Policy

In the previous issue of Health Care Analysis, Dr. Andrew Edgar wrote an editorial to round off his 8 years as editor of the journal. His commitment to the journal has provided a remarkable contribution to a range of fields of inquiry that focus on the relationships between health care, policy, practice, and philosophy. As Dr. Edgar indicates, under his stewardship, the journal has published papers addressing both long-standing and novel debates. As he notes, furthermore, his editorial approach has afforded a platform not only for established scholars, but also scholars at the start of their careers. Indeed, when I was amongst that latter category, I was a fortunate and grateful beneficiary of Dr. Edgar’s thoughtful, patient, and generous editorial guidance, and can attest first hand to the important influence he has had in mentoring many of us working in the field, as well as on our scholarship itself. As I now move to the position of editor, I would like here to reflect on my own outlook for Health Care Analysis, and how I intend to follow on from Andrew Edgar’s excellent example. Health Care Analysis is a journal that I have long held in high-esteem. Beyond having published my own work in the journal, I have had the pleasure on two occasions of serving as guest editor of journal special issues (one, edited with Soren Holm, on best interests; one, edited with Sarah Chan, on methods in bioethics). Using the journal as a vehicle for special issues is an important component of its service, and something that I am keen to continue. I will always be pleased to consider themed issues. In regard both to this, and to individual submissions to the journal, I would wish to stress what I see as a defining and crucial feature of this publication, ever since its inception under founding editor, Dr. David Seedhouse. Health Care Analysis has a central function in developing the conversation between policy and philosophy. I am particularly eager to enhance this conversation by bringing in more voices from inside policy, including academics engaged in public service, professional ethics,

ANOREXIA NERVOSA, BEST INTERESTS, AND THE PATIENT'S HUMAN RIGHT TO ‘A WHOLESALE OVERWHELMING OF HER AUTONOMY’ A Local Authority v. E [2012] EWHC 1639 (COP) [2012] HRLR 29

INTRODUCTION Much argument within medical law boils down to disputes about the proper meaning of respect for patient autonomy, and the scope that should be given to people’s freedom to decide for themselves what, if any, treatment they should receive. Within the case commentaries of the Medical Law Review, we find celebrations of the courts’ protection of autonomy, laments about undue restrictions on individual freedom,

Health Governance and Policy

This chapter explores how the growth of public health ethics has brought to bioethics a reinvigorated interest in political theory, and examines the potential utility of such an interest in the context of examining climate change. The salience of an ethically informed political approach to climate change is obvious. However, climate change clearly also presents complex challenges as it is a global problem that requires globally coordinated responses. Working through two parts, the chapter therefore looks at what might be learned about regulation and climate change from scholars interested in the ethics of health governance and policy. This chapter’s first part entails a critical overview of the expansion of public health ethics, and its relationship to bioethics both narrowly conceived and conceived in the context of environmental ethics. Once the political components of this bioethics are made clear, the chapter moves in its second part to consider the potential scope and limitations of a political framing within a global context. The apparent need for reconceptualisations of what it means to describe things as ‘public’ sheds light on analytical and strategic methods in bioethical debates concerning both health and the environment.

Beyond medicine, patients and the law: Policy and governance in 21st century health law

Margaret Brazier has been described as one whose work ‘light[s] the way’1 for those that follow, the ‘paradigmatic female role model for young academics’2, and as a ‘lawyer, whose heart is in the law’.3 We agree and argue that Brazier has a distinctive way of both analysing legal issues and evaluating legal problems. This chapter identifies and examines the distinctive elements of the Brazier method. Drawing on this method, and a case study, we argue that she has made a fundamental contribution to the development of healthcare law. Brazier has highlighted the importance of recognising the humanity of different stakeholders in the healthcare enterprise. Particularly important is her recognition of the fallibility and vulnerability of healthcare professionals alongside patients. Where previously medical law was a tool for confrontation between human patients and machine-like doctors, Brazier has facilitated its evolution into a new role as mediator between fallible and vulnerable players.This book celebrates Professor Margaret Braziers outstanding contribution to the field of healthcare law and bioethics. It examines key aspects developed in Professor Braziers agenda-setting body of work, with contributions being provide by leading experts in the field from the UK, Australia, the US and continental Europe. They examine a range of current and future challenges for healthcare law and bioethics, representing state-of-the-art scholarship in the field.

Editorial: Advancing Debates in Health Care Analysis

The current issue marks the start of my third year as Editor of Health Care Analysis. I have been, and remain, proud and honoured to hold this editorial position, which is both intellectually stimulating and, which I want to acknowledge strongly here, allows me to see the best of the academic community: the journal could not function without the enormous support offered by members of its editorial board, or of that provided by other reviewers of papers that are submitted. I, and the journal, owe a great debt of gratitude to all who assist the journal’s central mission of advancing discourses between philosophy, health, and policy. In support of the goals to continue achieving the journal’s ends, and given the diversity of approaches and areas of analysis that we cover, I am delighted to add to this expression of gratitude an announcement that the journal has now appointed three scholars to the position of Associate Editor. Jonathan Ives, Sorcha Ui Chonnachtaigh, and A. M. Viens, who have already given so much to Health Care Analysis, now have their heightened contribution and support recognised in that new role. This year’s edition of the journal begins with an exciting contribution by Jonathan Montgomery of University College London. Professor Montgomery’s paper was presented at an annual lecture series, named in his honour, and hosted at the Centre for Health, Ethics, and Law at the University of Southampton: a Centre that he and Caroline Jones co-founded a decade ago, and at which I now work. Professor Montgomery’s analysis brings to the fore the complexity of understanding and applying questions from bioethics within a practical, governance context. The synergies between his purposes and those of the journal are clear, and it is a pleasure to open this year’s Health Care Analysis with such a stimulating article. I am also

ALCOHOL DEPENDENCE AND ANOREXIA NERVOSA: INDIVIDUAL AUTONOMY AND THE JURISDICTION OF THE COURT OF PROTECTION An NHS Foundation Trust v Ms X [2014] EWCOP 35; (2014) 140 BMLR 41

INTRODUCTION In the case considered here, An NHS Foundation v Ms X, we find an instructive focus of analysis for mental capacity and mental health lawyers. The decision does not of itself represent a huge development in the law, but the interplay between apparently clear legal rules and principle and a complexly nuanced factual situation exposes the practical and theoretical challenges for health-care practitioners, and judges, working under the Mental Capacity Act 2005. In this commentary, I outline the case, which necessarily requires some detail in the presentation of the facts and legal reasoning. I then, in discussion, highlight two points of general concern that, I argue, would repay detailed, sustained evaluation. First, I raise the issue of how we delimit the very concept of treatment decisions and, second, look to how ongoing confusions or contradictions exist in relation to our understanding of what it means to have capacity.

Achieving Global Health and Justice: Practical and Philosophical Challenges

The central role of Health Care Analysis is to advance discourses between philosophy, health, and policy [1]. Within that very wide-ranging agenda, perhaps the most complex challenges are in global health. In countries across the world, many, many populations are unable to enjoy conditions in which they can be healthy. The barriers to change are political, economic, social, regulatory, legal, and philosophical. Lawrence Gostin’s recent book on Global Health Law therefore marks a contribution of the highest importance, marrying practical and philosophical agendas, and aiming at achieving global health with justice [2]. To progress the important work of Gostin’s book, the current journal issue draws together leading scholars in moral and political philosophy, economics, and law, with a shared interest in questions of global justice. In the first paper, Eric Friedman and Lawrence Gostin provide a clear overview of the practical and theoretical global health challenges and their response to these. Their analysis is followed by stimulating contributions from Norman Daniels, Jennifer Prah Ruger, Shawn Harmon, Attiya Waris and Laila Abdul Latif, Heather Widdows, and A.M. Viens, each engaging with questions raised by Global HealthLaw. The different papers underscore the significance of this area of inquiry, and the imperative to bring insights from scholarly work into global health practice.

Informing Patients and Making Decisions

What happens if a patient is not warned of a material risk that does not materialise but another, lesser risk does? Can the failure to warn the patient of the more severe risk be said to have caused the manifestation of the lesser risk if the patient can establish that he or she would not have proceeded with the surgery if he or she had been fully and appropriately warned? This is the nature of the question raised (and answered) inWallace v Kam [2012] NSWCA 82. In this instance Mr. Wallace underwent a spinal fusion to alleviate pain caused by a disc protrusion in his lumbar spine. After the surgery he developed bilateral femoral neurapraxia (local nerve damage) to the thighs. He was not warned of the risk of neurapraxia, but the trial Judge concluded that, even if he had been told, Mr. Wallace would have proceeded with the surgery. Causation with respect to the neurapraxia was therefore not established. A second risk described as a 5 percent chance of profound paralysis was also overlooked. The appellant argued that he should have been told of this risk as well and that, if he had been warned, he would not have proceeded with the surgery and therefore would not have suffered the other harm. The trial Judge concluded that this was not a legally relevant risk, as it did not manifest, and therefore declined to pursue it further. The issue on appeal was whether this approach was correct, with the appellant claiming that the trial Judge erred in deeming this risk to be legally irrelevant. This decision is of interest because it provides insight into the judicial approach to the causation enquiry as it is now embodied in the New SouthWales legislation,Civil Liability Act 2002 (NSW) s 5D (it is relevant to note here that all Australian jurisdictions have equivalent provisions). This decision also addresses the issue of the material risk that may have impacted on the decision-making process but was neither mentioned nor materialised. The appellant was unsuccessful in his claim, with two judges (Allsop P and Basten JA) rejecting his appeal and the third (Beazley JA) arguing that the appeal should be upheld. It is worth considering each judgment in turn as they serve to highlight the “subtleties and difficulties that underlie questions of causation” (at [1], Allsop P) and demonstrate the problematic nature of broad generalisations in the sphere of medical law. Allsop P carefully analysed the general approach to causation under the relevant legislation and highlighted the two-step nature of the enquiry. He explained that the Bioethical Inquiry (2013) 10:139–143 DOI 10.1007/s11673-013-9439-6