Professor Shaun Pattinson
Background
This project examines the way that the current law is challenged by biomedical developments that will create, enhance or extend human life. Its central question is: how should judges and legislators understand and address the substantive, structural and conceptual challenges arising at the frontiers of biomedicine? The result will be a novel approach to legal theory. It aims to show that law is a subcategory of a secular morality and fully respond to challenges presented by the historical compromises of English law and the issues raised by four case studies on future biomedical developments.
This project was funded by a Leverhulme Trust Major Research Fellowship, awarded to Professor Shaun Pattinson. It ran for 24 months from 1 October 2020 to 30 September 2021.
The resulting book was published on 26 January 2023:
Law at the Frontiers of Biomedicine: Creating, Enhancing and Extending Human Life (Hart, 2023)
Dr Samantha Halliday (Durham CELLS) with Rebecca Brione (Birthrights) and Dr Jacqueline Nicholls (UCL).
Consent is the golden principle that determines the legality of most medical treatment. However, whilst choice is the much-vaunted central tenet of maternity care, its importance emphasised in policy documents, the lived experience is often rather different, particularly in the case of women constructed as ‘other’. This class of invisible women includes women with a serious mental illness, women with a learning difficulty, women of colour, women who do not want to be mothers… In each case their ‘choice’, their ‘consent’ is devalued, afforded less significance by societal structures, healthcare professionals and indeed the law.
This project brings together a range of researchers and practitioners from multiple disciplines to address the issue of choice in the context of reproduction, focussing upon narratives of consent as they pertain to women who all too often are rendered invisible by the law, by the healthcare professionals treating them, or by society. It is led by Dr Samantha Halliday (Durham CELLS), Rebecca Brione (Birthrights) and Dr Jacqueline Nicholls (UCL).
Events:
Professor Emma Cave, Durham CELLS with PI Emeritus Professor David Archard, Queen’s University, Belfast.
The research will conduct an evaluation of the role of ethics committees in the pandemic. Committees
operate at the national level - both as part of Government and in relevant professional organizations – and at the local clinical level. They produce guidance supported by statements of general principles raising questions as to the origin, status, value, relevance and timeliness of guidance and its potential to conflict. The research will evaluate the guidance and offer recommendations as to the best and most appropriate role of the ethics committees interpreting, supporting and implementing that guidance. A series of webinars will span the year, culminating in a national conference in London in July 2021.
Funding
This project is funded by the British Academy Special Research Grants: Covid-19 Scheme. It runs from 1 August 2020-31 July 2021.
Webinars held in 2020:
The role of National Ethics Committees during the COVID-19 pandemic with Prof Sir Jonathan Montgomery, Prof Emily Jackson, Prof Bobbie Farsides, Prof Dr Aleyna Buyx.
The role of professional ethical guidance in the COVID-19 pandemic with Katie Gollop QC, Prof Richard Huxtable, Dr Mark Sheehan, Prof Dominic Wilkinson.
The role and remit of Clinical Ethics Committees in the COVID-19 pandemic with Prof Raanon Gillon, Prof Anne Marie Slowther, Dr Joe Brierley, Dr Peta Coulson-Smith.
Dr Camilla Pickles
Obstetric violence and the law is an ongoing project that started at the University of Oxford in 2017, under a British Academy Postdoctoral Fellowship. The project explores what ‘obstetric violence’ means, how it manifests in different contexts and it asks how the law should respond to this form of violence against women.
Obstetric violence is a global issue that plagues women’s childbirth experiences within healthcare facility contexts. This form of violence concerns disrespectful, abusive and coercive treatment of pregnant and birthing people during childbirth and it results in the violation of their autonomy, human rights and sexual and reproductive health.
Some examples of obstetric violence include medical neglect, verbal and physical abuse, humiliation, shouting, scolding, threatening, and crude and aggressive attacks on women’s sexuality. At times, healthcare professionals intentionally employ these tactics to assert authority, remove women’s agency and cast shame on them for breaching gender norms. Performing procedures without informed consent, with coerced consent, or performing procedures by an order of court are also deemed examples of obstetric violence.
Procedures that have been identified as forms of obstetric violence are those that are imposed on women as routine (without having any clinical indication or evidence base) and without informed consent. These include unnecessary caesarean-section procedures and episiotomies, manual revision of women’s uterine cavities without pain relief, inserting long-term birth control mechanisms directly after birth, collective vaginal examinations for training purposes, restraining women to their beds, and forced or coerced sterilisations.
Obstetric violence is characterised as a form of gender-based violence and it is rooted in broader gender inequalities. Thus, obstetric violence is a type of violence that takes place an individual and structural level and it violates women’s physical and/or psychological integrity; treating them as lesser beings within the maternity care context.
Key Project Outputs:
Several recent high-profile cases involve disagreements between parents of young children and healthcare professionals. Whilst parents generally make medical decisions for their very young children, their powers are limited where the child is being given medical treatment and the parental view is considered by health care professionals to conflict with the best interests of the child. Problems intensify if the parents seek treatment aboard or if the therapy they want is experimental. Where disagreement cannot be resolved, the court is often called upon to make an independent assessment. In the UK the best interests test is determinative, but there is renewed pressure to challenge its application and give greater powers to parents.
In the cases of Gard, Haastrup and Evans, the High Court granted the declarations sought by respective NHS Trusts: decisions that were upheld on appeal. Charlie Gard, Isaiah Haastrup and Alfie Evans were given palliative care and died soon after the final judgments. In Raqeeb, the court held that the 5-year-old could travel to Italy for further treatment, notwithstanding the view of the treating health care professionals that this would be contrary to her best interests.
The cases raise several important issues, many of which are explored in three case notes from Durham CELLS members. van Leeuwen (2020) analyses the interaction between the best interests test and the right to freely receive services in Article 56 TFEU in Raqeeb. Cave and Nottingham (2018) uphold the application of the best interests test as opposed to a test of significant harm. Cave, Brierley and Archard (2019) highlight problematic aspects in the application of the best interests test in Raqeeb
Inaugural Annual Lecture
In the 2020 Durham CELLS inaugural Annual Lecture, Katie Gollop QC explores the issues further, asking who decides when parents seek to take children abroad for treatment health care professional considers to be contrary to the child’s best interests.
What role does reason play in determining what, if anything, is morally right? What role does morality play in law? Perhaps the most controversial answer to these fundamental questions is that reason supports a supreme principle of both morality and legality. This project seeks to cast a fresh critical eye over the coherence of modern approaches to ethical rationalism within law, and reflect on the intellectual history on which it builds. The project will then take the debate beyond the traditional concerns of legal theory into areas such as the relationship between morality and international law, and the impact of ethically controversial medical innovations on legal understanding.
In October 2015, a group of scholars in law and philosophy gathered to consider these issues. This conference was jointly funded by Durham CELLS and the University of Bristol Law School and held in the Senate Rooms of Durham Castle.
Final Collection:
P Capps & SD Pattinson, Ethical Rationalism and the Law (Hart, 2017)
Human Cloning and Stem Cell Research Through the Medium of Law
Durham CELLS ran an interdisciplinary project to engage 16-18 year old students in learning about two exciting areas of biomedical science. Events took place on stem cell research in 2014, and on human cloning and mitochondrial donation in 2015. Students studying AS and A levels from four local schools took part in law-in-action workshops to experience how our society debates controversial issues.
For stream 1, student engaged in a mock parliamentary debate on stem cell research. For stream 2, students engaged in a mock court case on human cloning and a mock parliamentary debate on mitochondrial donation. Stream 3 involved dissemination of the experiences and research results to wider audiences.
This project ran for 36 months from 1/02/14 to 1/02/17 and was funded by a Wellcome Trust People Award.
/prod01/prodbucket01/media/durham-university/departments-/law-school/78782.jpg)