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).
No comments:
Post a Comment