Papers by Jonathan Montgomery
BMJ, Jul 6, 1996
These studies show the dangers of making ethical pronouncements in an empirical vacuum. There is ... more These studies show the dangers of making ethical pronouncements in an empirical vacuum. There is a pressing need for more research on how proxy decision makers arrive at their recommendations for treatment. With regard to bone marrow donation, parents have several obligations. Not only do they have to keep the best interests of the two children in mind but they also have to come to a mutually acceptable solu- tion that will at least maintain their partnership. Just as there is now much emphasis on evidence based medical practice, so too ought there to be more interest in evidence based ethical practice.
Journal of medical law and ethics, Oct 31, 2019
This paper considers some of the labels that have been used by scholars to define and theorise ou... more This paper considers some of the labels that have been used by scholars to define and theorise our subject area and which we are now being invited to re-imagine. These include, in roughly chronological order from my working lifetime, 'Law, Ethics and Medicine', 1 'Medical Law and Ethics', 2 'Law and Medical Ethics', 3 Medicine, Patients and the Law', 4 'Medical Law', 5 'Health Care Law', 6 Public Health Law, 7 Health Law. 8 These reflect the period of academic consolidation that occurred as the subject that Margot Brazier and I have elsewhere discussed as 'modern medical law' took shape in the decades since it 'emerged' in the early 1980s. 9 We have argued that an historical perspective demonstrates that the way lawyers 'imagined' the subject in the last quarter of the Twentieth Century was blinkered and neglected the long history of engagement between health and law. We showed how this neglect led to 'myths' taking root that constrained the development of legal scholarship and practice. 10 This is one of the reasons why it is important to consider how 'imaginaries' have shaped our perspectives and understandings. We need to do this in order to take stock of how we might best position our efforts in the future. Our earlier paper deferred consideration of the question of the best name for our field of study, but I address that issue in this piece. 11
The glass consumerLife in a surveillance society
... such data can also be made to enable analysis, such as the anonymisation processes themselves... more ... such data can also be made to enable analysis, such as the anonymisation processes themselves ... are carried out on identifiable records but need to be done to secure anonymity), identification ... Such uses are overseen by the Patient Information Advisory Group, set up to review ...
Hart Publishing eBooks, Dec 21, 2016
This case raises issues of clinical judgment and moral integrity that invite analysis of the very... more This case raises issues of clinical judgment and moral integrity that invite analysis of the very foundations of medical malpractice law. Medicine is a calling that requires the application of knowledge but also the exercise of both skill and judgement. Doctors must be scientists applying their expertise in the interests of their patients. They also embody an ethical tradition that has been developed over centuries and thus must possess moral integrity. It is on the combination of this scientific expertise and ethical orientation that the social contract is built that offers the medical profession a privileged position in our society in return for the care that it provides.
Bioethics is a hot topic. Few weeks go by without a headline concerning the implications of emerg... more Bioethics is a hot topic. Few weeks go by without a headline concerning the implications of emerging scientific possibilities, health service controversies, or moral dilemmas around death and dying. The study and resolution of these problems form part of the field of bioethics. While in some countries the discipline has been dominated by philosophers, in the UK lawyers have played a pivotal role. One commentator has argued that Professor Sir Ian Kennedy, then at the Law School of King's College London 'virtually invented the field in the United Kingdom'. Certainly, his Reith Lectures in 1980, later published as The Unmasking of Medicine (1983), mark the beginning of highly visible public discussions of the issues which became increasingly matters for society to determine whereas they had previously been seen as internal matters of professional ethics. While early medical legislation displayed such a degree of trust in the profession that no sanctions were included in the Human Tissue Act of 1961, now it is subject to extensive regulation. The Human Tissue Act of 2004 begins by listing no less than nine activities which constitute crimes unless authorised by an appropriate consent and goes on to subject transplantation and other medical practices to a strict licensing regime under a statutory regulator. The reform of this legislation illustrates one of the ways in which lawyers have led the transformation of bioethics from a professional matter to a highly regulated area of life. The 2004 Act was prompted by a major inquiry into the retention of organs at Liverpool's Alder Hey hospital. Chaired by Michael Redfern QC, it drew attention to the need for reform. Other examples of lawyers having a major impact in the area of health services include the many inquiries led by Sir Ian Kennedy, including most significantly that into children's heart surgery at the Bristol Royal Infirmary, which led to a transformation of NHS culture partly consolidated by the NHS Reform and Health Care Professions Act 2002. Major change is expected as a result of the inquiry currently being undertaken into failures of care in Mid-Staffordshire, under the chairmanship of Robert Francis QC. The NHS would be a very different place were it not for the work of lawyers.
Clinical Ethics
BackgroundThis analysis is about practical living bioethics and how law, ethics and sociology und... more BackgroundThis analysis is about practical living bioethics and how law, ethics and sociology understand and respect children’s consent to, or refusal of, elective heart surgery. Analysis of underlying theories and influences will contrast legalistic bioethics with living bioethics. In-depth philosophical analysis compares social science traditions of positivism, interpretivism, critical theory and functionalism and applies them to bioethics and childhood, to examine how living bioethics may be encouraged or discouraged. Illustrative examples are drawn from research interviews and observations in two London paediatric cardiac units. This paper is one of a series on how the multidisciplinary cardiac team members all contribute to the complex mosaic of care when preparing and supporting families’ informed consent to surgery.ResultsThe living bioethics of justice, care and respect for children and their consent depends on theories and practices, contexts and relationships. These can al...
Slides from a HEAL seminar considering the recent history of bioethics governance in the UK, incl... more Slides from a HEAL seminar considering the recent history of bioethics governance in the UK, including the dismantling of the bureucratic approaches established since the 1980s through the 'bonfire of the quangos' into an uncertain future. Some issues are raised that need to be addressed as the future architecture is established
This lecture examines the implications of the plurality of ethics for the processes that we can u... more This lecture examines the implications of the plurality of ethics for the processes that we can use, in the UK, in 2012, to set public policy on bioethics. In particular, I am concerned with the opportunities and challenges that arise as that regulatory landscape is changing significantly. In this sense, the question is ‘Which ethics is bioethics?’ and asks us to choose the methodology for making such decisions. The current Government has adopted a very different approach to doing public bioethics from the one that had become established over the previous thirty years. Over that period, public bioethics in the UK has largely been done by committee – the Human Fertilisation and Embryology Authority or the Human Genetics Commission being leading examples. When it took power, the Government boldly announced the demise of these organisations in its bonfire of the quangos (although the actual death is long and agonising), but has not really explained how public bioethics will be done in ...
Bioethics can be considered in many ways. It is, at least, (a) a field of study, whereby we can i... more Bioethics can be considered in many ways. It is, at least, (a) a field of study, whereby we can identify exciting, interesting and controversial topics that make for stimulating enquiry; (b) an academic discipline or disciplines, whereby scholarship is brought to bear on these issues; and (c) a set of governance challenges in the public square. This lecture looks at the challenges of legitimation through the lens of the practices adopted by governance bodies, particularly in the UK. It identifies a range of legitimation strategies and considers some of the issues that they raise. While they are not entirely separate from each other, it suggests that they raise distinct, although overlapping questions that help illuminate what is needed for bioethics governance to play successfully its role in the biopolitics of the age.
Clinical Ethics, 2021
This discussion paper considers how seldom recognised theories influence clinical ethics committe... more This discussion paper considers how seldom recognised theories influence clinical ethics committees. A companion paper examined four major theories in social science: positivism, interpretivism, critical theory and functionalism, which can encourage legalistic ethics theories or practical living bioethics, which aims for theory–practice congruence. This paper develops the legalistic or living bioethics themes by relating the four theories to clinical ethics committee members’ reported aims and practices and approaches towards efficiency, power, intimidation, justice, equality and children’s interests and rights. Different approaches to framing ethical questions are also considered. Being aware of the four theories’ influence can help when seeking to understand and possibly change clinical ethics committee routines. The paper is not a research report but is informed by a recent study in two London paediatric cardiac units. Forty-five practitioners and related experts were interviewed...
Medical Law International, 2018
This article considers the shape of bioethics governance in Europe, noting the interplay between ... more This article considers the shape of bioethics governance in Europe, noting the interplay between the institutions and laws of the Union and those of the Council of Europe. It reviews the structures of UK bioethics governance and identifies weaknesses that Brexit provides an opportunity to address. It notes the ambiguous relationship of UK bioethicists with European institutions and discusses the importance of soft power. It explores what the United Kingdom should do to maintain its influence. It advocates, first, improved coordination of governance organizations within the United Kingdom. Second, a more strategic approach to ‘soft power’ and UK involvement with international organizations, both within the European region and more widely. Finally, it proposes that the United Kingdom become a signatory to the Oviedo Convention in order to consolidate its connections with European values. These steps are suggested as mitigation for the loss of influence that Brexit might otherwise bring.
The Hastings Center report, 2017
The United Kingdom has many bodies that play their part in carrying out the work of national ethi... more The United Kingdom has many bodies that play their part in carrying out the work of national ethics committees, but its nearest equivalent of a U.S. presidential bioethics commission is the Nuffield Council on Bioethics, established in 1991. The Council is charged with examining ethical questions raised by developments in biological and medical research, publishing reports, and making representations to appropriate bodies in order to respond to or anticipate public concern. It is a nongovernment organization with no defined or guaranteed channels of influence. It has no authority merely by virtue of the position it holds. Rather, it has established relational authority based on its reputation. Unlike the U.S. bioethics commission, it is not part of executive government, nor is it constituted to contribute to the legislative branch, as does the French Comité Consultatif National d'Ethique. Its nongovernmental status notwithstanding, the Nuffield Council's work affects the U.K...
Nursing and the Law, 1989
People who are elderly A large and increasing proportion of patients in our hospitals are elderly... more People who are elderly A large and increasing proportion of patients in our hospitals are elderly. Usually their age will be of no legal relevance to their treatment or lifestyle. Nevertheless, several legal problems are associated, although not exclusively, with old age. These include: l Unhygienic homes. Very occasionally some people live in conditions that harm their own or threaten others' health. There are powers to remove such people from their homes. 2 Managing property and money. Some people are unable, because of mental disorder, to manage their financial affairs. These problems are often associated with old age. While few people, however wise, may wish to prepare for being mentally disordered and incapable there are practical and individualised ways of preventing many problems from arising. 3 Special housing needs. With increasing problems of mobility some elderly people have special housing needs. Some people in hospitals might be better placed in such housing. The private sector provides some special housing where special laws apply. These areas of law are not limited to elderly people. Being elderly may mean pensions are payable and there is, sometimes, entitlement to special housing. However, it does not lead to any special legal status in the sense that mental disorder can. The general law of negligence, for example, still applies. Elderly people are still entitled to refuse or consent to treatment. There may be differences in practice, such as a reluctance to take risks or reduced priority for treatment. The legality of any such differences would have to be decided by applying general principles. The law governing residential and nursing homes is not limited to units designed for elderly people. Indeed the Act that regulates nursing homes also applies to private acute hospitals. The special laws on managing patients' property and finance depend upon proof of mental disorder and have nothing, directly, to do with elderly people. However, in practice, these legal issues are particularly relevant to elderly people. Most people subject to the D. Carson et al., Nursing and the Law
European Law and New Health Technologies, 2013
This piece reflects on factors that affect the selection of regulatory options in the context of ... more This piece reflects on factors that affect the selection of regulatory options in the context of the work of a UK body that was not a ‘regulator’ in the sense of formally overseeing the activity of others. The Human Genetics Commission (HGC) did not directly wield legal power, but it had a recognised place in UK bioethical governance. It instigated legal interventions, such as the crime of DNA theft under the Human Tissue Act 2004. However, in other pieces of work different modes of regulation have emerged. It is necessary to consider the type of normative intervention that is ultimately most likely to promote the activities and behaviours that have been identified as desirable. Such regulatory strategies are sometimes obscured by the more explicit consideration of substantive issues in the final published reports. This piece considers how choices have been made about which options to pursue
In this chapter we have outlined some of the ethical challenges presented by the greater use of g... more In this chapter we have outlined some of the ethical challenges presented by the greater use of genomics in the NHS. We began by noting that the realisation of the important benefits of developments in genomics for patients is going to require significant changes in the ways in which health care is understood, organised and delivered. We picked out three particular aspects as having particular significance: the greater integration and complementarity between research and clinical practice; the central importance of data collection and analysis; and, the increasing role of uncertainty and open-endedness in genomic medicine. Against this backdrop, we have argued that the sustainable achievement of the benefits of genomics requires a broad renegotiation of the social contract for medical research and medical practice in the NHS. We picked out four areas in which this is likely to be particularly important: (1) consent; (2) confidentiality and the care of family members; (3) the duties ...
Journal of Medical Ethics, 2020
Non-recent (historic) childhood sexual abuse is an important issue to research, though often rega... more Non-recent (historic) childhood sexual abuse is an important issue to research, though often regarded as taboo and frequently met with caution, avoidance or even opposition from research ethics committees. Sensitive research, such as that which asks victim-survivors to recount experiences of abuse or harm, has the propensity to be emotionally challenging for both the participant and the researcher. However, most research suggests that any distress experienced is usually momentary and not of any clinical significance. Moreover, this type of research offers a platform for voices which have often been silenced, and many participants report the cathartic effect of recounting their experiences in a safe, non-judgemental space. With regard to the course of such research, lines of inquiry which ask adult participants to discuss their experiences of childhood sexual abuse may result in a first-time disclosure of that abuse by the victim-survivor to the researcher. Guidance about how researc...
Conscience matters deeply, but professional roles are not merely personal. They involve shared id... more Conscience matters deeply, but professional roles are not merely personal. They involve shared identities, values and responsibilities. We all have multiple roles and identities. Professor Bernhardi is at once a doctor and a Jew, a hospital director and a father. These identities are both personal and archetypal. They are also vocational, as is the role of priest. The ‘calling’ is to something pre-defined, to serve in a particular role. Professional conscience can never be a truly private matter. The four acts illuminate the interplay between roles and expectations; changing by location, time and space, including the degree to which they can accommodate personal adaption. The clinic has its own hierarchy of authority. Professor Bernhardi, as doctor, is in charge. There is no place for conscientious objection. The focus is on matters of the body. The patient becomes a person only when the priest challenges the jurisdiction of the doctor, and in response Professor Bernardi becomes her...
Public Health Ethics, 2020
In The legal determinants of health: Harnessing the power of law for global health and sustainabl... more In The legal determinants of health: Harnessing the power of law for global health and sustainable development, Gostin et al. provide a sustained account of how law can and should be used as an instrument of health promotion. We pick up on the themes of this report with a specific focus of the importance of abortion for women’s sexual and reproductive health and the impact that particular ways of framing abortion in law can have on the lives of women and girls. In this short comment, we wish to emphasize that abortion regulations need to move beyond frameworks based on narrow understandings of harm towards more progressive agendas that take into account the social determinants of health in order to reduce barriers to care. This contribution is particularly relevant to the Commission’s criticism that those ‘[l]aws that stigmatise or discriminate against marginalized populations are especially harmful and exacerbate health disparities’.
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Papers by Jonathan Montgomery