On these pages we honour the intellectual contributions of our esteemed colleague and dear friend, Ken Mason, in the broad field of medical jurisprudence. We invite short academic posts up to 1,000 words that are inspired by Ken Mason’s writing in the field. Anyone who knew Ken or has been influenced by his work is welcome to submit a proposal to Graeme.Laurie@ed.ac.uk.

Ken Mason was an Honorary Fellow in the School of Law at the University of Edinburgh for 32 years, from 1985 until his death on 26 January 2017. Even before joining the School of Law officially, Ken was publishing significant contributions in medical law and ethics during his time as Regius Professor of Forensic Medicine, also in Edinburgh, from 1973-1985. During that early period he established honours and masters courses in medical jurisprudence with his colleague Alexander (Sandy) McCall Smith, and this work formed the basis of their textbook, Law and Medical Ethics, that was first published in 1983. It was the first such textbook of its kind in the United Kingdom and helped to establish Ken Mason has an unassailable founding father of the discipline in the UK. The book has been used by multiple generations of undergraduate and postgraduate students since its first appearance, and many of Ken’s former students offer contributions on these pages that speak of the ways in which Ken and his intellectual ideas have inspired them.

Ken Mason was a prodigious scholar. He was fascinated by all aspects of medical law and ethics, which in Edinburgh we call Medical Jurisprudence. This both reflects the historical links between medicine and law that have existed in our institution since the 18th century, and also captures the idea that our field transcends disciplines and requires input across different specialities to make genuinely influential contributions. While Ken’s command of the law was often superior to that of many of his legal colleagues, his interests were particularly engaged by reproduction & the law, as well as by end-of-life issues. True to form, however, Ken was always open to changing his mind. It was not unusual from one academic year to the next for colleagues to be wrong-footed by a 180-degree volte face by Mason on any given topic! On more than one occasion, he declared himself a feminist - as much to his own surprise as to anyone else’s.

Still, Ken often professed to having a ‘bee in his bonnet’ about stubborn issues and questions in medical jurisprudence. In particular, we recall the following:

- he strongly supported the view that a mature minor should not be allowed to refuse treatment, even is she has capacity to consent (Gillick)

- he took issue that that law affords the fetus ‘no rights’;

- he was vexed by the ‘individualistic’ turn in medical law, and was drawn to notions such as relational autonomy;

- he often called himself a communitarian, and he was intrigued by areas of law and ethics that reflected this idea;

- he was engaged by assisted dying legislation, especially on what would count as adequate safeguards and whether medical practitioners should be involved;

- he insisted that death was a process, and not a moment, and he was frustrated by law’s failure to reflect this: this has implications for his view on transplantation;

- he vehemently disagreed with the rule that you cannot recover for the birth of a healthy child even when there is negligence;

- he would have been fascinated by the current revisitation of the 14-day rule in embryo preservation and use.

You will find contributions here that reflect these and many other of Ken Mason’s ideas. As stated above, we welcome contributions from anyone who knew him or his work. As a reminder, here are some links to Ken’s contributions to medical jurisprudence over the years as well as to other examples of the work of people who have honoured him:

-Ken Mason's publication list on Edinburgh Research Explorer

-Ken Mason’s monograph, The Troubled Pregnancy (CUP, 2007)

-Ken Mason’s festschrift, First Do No Harm (SAM McLean (ed), Ashgate, 2006)

We will continue to populate this site with contributions as and when the come in. We will alert audiences via the Mason Institute and its Twitter account @masoninstitute.

If you would like to contribute, please contact Graeme.Laurie@ed.ac.uk

If you would like to become a member of the Mason Institute, please contact Annie.McGeechan@ed.ac.uk

If you would like to leave a message of condolence, please visit the official site here: www.inmemoryofkenmason.law.ed.ac.uk

Please scroll down this page to read our latest blog posts.

Tuesday, 4 April 2017

Rigorous and Incisive, but a Humanist First!

By Shawn H.E. Harmon, School of Law, University of Edinburgh

While I did not have the close relationship with Ken Mason that some of my colleagues had, nor as close a one as I might have liked and could possibly have cultivated, I did have the sincere privilege of interacting with Ken in multiple capacities. Ken was my teacher; he taught on my Medical Jurisprudence LLM course, challenging us intellectually while making us tea and distributing biscuits.
Ken was my interviewer; he participated in the telephone interview for my first Research Fellowship. It took place in mid-December, and he persevered in good humour through a poor trans-Atlantic connection that was persistently interrupted by an unknown party talking to another unknown party about Christmas trees.
Ken was my examiner; he was the internal for my PhD viva which included externals Roger Brownsword and Nils Hoppe. This was an intimidating panel if ever there was one. But, disinclined to ease us into the process, Ken opened with a typically direct question about the difference between values and principles, a matter foundational to my work and having the potential to unravel the thesis. The look of dismay on the other faces was visible, less so for it being asked than for its timing, one suspects, but the question, posed early, led to a robust discussion, and a thoroughly enjoyable viva; and in the end, to a PhD.
Ken was my colleague; from my hiring by Edinburgh in 2005 to the time of his retirement, he sat a floor above me in Old College, though much, much higher in the tower of thought.[1] I am reminded of the tribute paid to country music icon, Hank Williams, by the great Canadian poet and lyricist, Leonard Cohen:[2]
I said to Hank Williams: How lonely does it get?
Hank Williams hasn't answered yet,
But I hear him coughing all night long,
A hundred floors above me,
In the Tower of Song.
While Cohen’s place in the Tower was certainly understated (a rare example of modesty), my own place many stories below Ken in our own Tower is not contested. Ken was a towering intellect who worked his way to the top of three careers. Nonetheless, and despite my trepidation, I would like to engage ever so briefly with one of the bees in Ken’s bonnet, and one that I share in some measure.
Ken was vexed by the ‘individualistic’ turn in medical law and ethics. He argued that Principlism, the then and still dominant ethical decisional framework:
… is overly concentrated on the individual – and a markedly hedonistic individual at that. The second and third principles do little other than restate the obvious and are frequently in conflict. Perhaps the most extreme example is that of reduction of multiple pregnancy – whether you are doing harm or good depends very much on whether you look on it from the point of view of a foetus that is to be eliminated or of one that is to be preserved. The conflict appears in more practical circumstances in the context of euthanasia. On the one hand, the principle of non-maleficence tells us, at least in deontological terms, that killing is a prima facie wrong. On the other, freeing a patient from intolerable pain could reasonably be seen as beneficence. Principlism has not taught us what is right but, as with any theory of ethics, it has shown us a different way of justifying a particular decision. Inevitably, the answer as to whether it was right or wrong is left to the individual’s morality, which means that what is right is what is right in the mind of the decision maker.[3]
In the same paper, he confessed to being attracted to a communitarian ethos, which he saw as promoting the good of the community.
This, of course, begs the question, what community?
In arguing that we must more consistently realise solidarity with others, I have claimed that we must pay attention to the whole human community; it is the global community that we ought to think about when making decisions around healthcare research and health technology development,[4] and indeed around other welfare-supporting elements such as water (where I have jointly advanced a public interest approach to water management).[5] A more inclusive idea of community is important in the modern setting where our risks and technologies are cross-border and global: the technician in Argentina, the physician in Nigeria, and the patient in China are not so remote anymore. If we are to achieve solidarity and adopt more joined-up policies (around health and innovation and access to medicine), then we must forge a sense of community that is much broader than we have historically bothered ourselves with.
Of course, Ken would rightly reject such a broad community of interest when considering the more coal-face clinical setting, with which he was primarily interested. He suggested that the community must be defined as those persons who will be affected in some way by a decision.[6] In the clinical setting, this will often be the patient, his or her family, the treating healthcarers, and potentially other patients, either like or unalike and competing for finite health resources. But I am confident that while we might argue about the breadth of the community in specific contexts, Ken and I would probably agree that all health-related decisions and policies certainly implicate a wider collection of people than our dominant autonomy-centric processes typically permit. It also invites more squarely, I would argue, considerations of compassion and other duties because the interest of the community and its constituents must be considered in relation to the patient. One could also argue that a more inclusive or community-cognizant approach to medical law, ethics and decision-making imposes on actors a more obvious responsibility to be transparent, which was frequently a concern of Ken’s. This more inclusive and sensitive approach to decision-making finds support in Eastern notions of filial piety and family consent practices, and certainly influenced the work of Lõhmus,[7] who studied under Ken. She advocated the idea of ‘caring autonomy’, which she defines as sensitive to relations and interdependence and as engaging with the ethic of care, the fulfilment of responsibilities demanded by certain relationships, and the interaction of vulnerability and trust.
Ken’s relational and communitarian perspective was undeniably informed by his own deep valuing of life and its possibilities, and his recognition of interconnectedness, both of which were almost certainly shaped by his personal history as a military man and a doctor, and it was accompanied by a demand that our decisional frameworks and rules sufficiently reflect the multiple relations and obligations that shape our individual reality. Indeed, this deep valuing of life and the significance he attached to connections is apparent in his monograph, The Troubled Pregnancy.[8] His humanitarian or humanist perspective demands a much deeper and more consistent and holistic engagement with both the broad and the individual human condition than we typically adopt in either policy or individual decision settings. It similarly demands a more sensitive approach to people and their sphere of influence than the law typically acknowledges (as demonstrated through Lõhmus’ examination of autonomy litigation under Article 8 of the European Convention on Human Rights[9]). In this respect, Ken was fairly consistently dissatisfied with the law and medical ethics, and he persistently critiqued them for their failure to adequately advance an ethic of care, particularly in matters strongly characterised by vulnerability.[10]
Ken’s general sensitivity to the human element in medico-legal disputes, and the human side of the law (reflected ever so elegantly in his teaching style), is apparent in his own celebration of a friend and colleague, Margot Brazier. After discussing her position on autonomy, he observes, in the penultimate paragraph, as follows:
Circumstances in the medico-legal field are seldom, if ever, identical; it would be idle to suppose that we must, or can, achieve a uniform response to individual challenges. The first half of this article was dealing with the somewhat arid subject of patients’ rights; the second is almost entirely about human relationships. There is no reason why the two sides of Professor Brazier—the lawyer and the humanitarian—should not appear equally brightly. Indeed, we may ponder as to whether she has not introduced us to a new construct of autonomous humanity.[11]
I contend that these sides – the legal and the humanitarian (or humanist) – were equally apparent and brightly articulated in Ken’s work.[12] And while I cannot conclude as he did – “Keep writing, Margot!” he urged – his extensive and erudite body of work reminds us that the law and medicine are there to serve individuals, families, communities, and society. They are meant to serve as institutions for the wellbeing and the flourishing of people, and they should consistently remind us to pursue such wellbeing and flourishing as we pursue our various endeavours. Ultimately, Ken might fairly be characterised as a ‘humanist’, and if we embrace this sensitive and care-grounded perspective, then Ken’s body of work will surely serve us all well into the future.

[1] I hesitate to use the phrase ‘ivory tower’, which evokes images of remote pontification. Neither Ken nor anyone within our Edinburgh medical law and ethics team believe that we occupy such a place, or should. Given his vast and diverse experience, Ken was, I believe, keenly aware of the practical and purposive nature of the law, and of the need to engage with it on many levels, including the messy coal-face, to achieve the justice that it promises.
[2] L Cohen, ‘Tower of Song’, on I’m Your Man (1987; Columbia Records).
[3] K Mason, ‘Ethical Principles and Ethical Practice’ (2006) 1 Clinical Ethics 3-6, at 3-4.
[4] S Harmon, ‘Solidarity: A (New) Ethic for Global Health Policy’ (2006) 14 Health Care Analysis 215-236. For more on solidariy, see S Harmon and A McMahon, ‘Banking (on) the Brain: From Consent to Authorisation and the Transformative Potential of Solidarity’ (2014) 22 Medical Law Review 572-605, and B Prainsack and A Buyx, Solidarity in Biomedicine and Beyond (Cambridge U Press, 2017).
[5] S Harmon and J Graham, ‘Water, Health and Social Justice’, April 2017, Impact Ethics, at https://impactethics.ca/.
[6] Mason, note 3.
[7] K Lõhmus, Caring Autonomy: European Human Rights Law and the Challenge of Individualism (Cambridge U Press, 2015).
[8] K Mason, The Troubled Pregnancy: Legal Wrongs and Rights in Pregnancy (Cambridge U Press, 2007).
[9] Lõhmus, note 7.
[10] See G Laurie and K Mason, ‘Trust or Contract: How Far Does the Contemporary Doctor-Patient Relationship Protect and Promote Autonomy?’ in P Ferguson and G Laurie (eds.), Inspiring a Medico-Legal Revolution (Ashgate, 2016), and others.
[11] K Mason, ‘Autonomous Humanity? In Tribute to Margaret Brazier’ (2012) 20 Medical Law Review 150-156, at 156.

[12] For an example of this, see S Mclean and K Mason, ‘Our Inheritance, Our Future: Their Rights?’ (2005 ) 13 International J of Children's Rights 255-272, or any of the editions of Mason and McCall Smith’s Medical Law & Ethics (Oxford U Press).

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