Charles Foster

Fellow of Green Templeton College, Oxford. Tutor in medical law and ethics, University of Oxford

Rewarding what matters: Status in academic ethics

By Charles Foster

Not everything matters equally. If academic ethics is to be useful – if, indeed, it is to be ethical – it should address itself more to the things that matter most than to things that matter less.

It is hard to imagine a pair of sentences more uncontroversial – no, downright trite – than the two above. And yet not only are these basic principles not acknowledged, they are often reversed: often the manifestly least important work in academic ethics gets the most applause and recognition. This may be because it is more arcane and therefore perceived as requiring greater cleverness.

This needs to stop, and that demands a system whereby important and useful work is incentivised by enhanced status and funding. Continue reading

The Doctor-Knows-Best NHS Foundation Trust: a Business Proposal for the Health Secretary

By Charles Foster

Informed consent, in practice, is a bad joke. It’s a notion created by lawyers, and like many such notions it bears little relationship to the concerns that real humans have when they’re left to themselves, but it creates many artificial, lucrative, and expensive concerns.

Of course there are a few clinical situations where it is important that the patient reflects deeply and independently on the risks and benefits of the possible options, and there are a few people (I hope never to meet them: they would be icily un-Falstaffian) whose sole ethical lodestone is their own neatly and indelibly drafted life-plan. But those situations and those people are fortunately rare. Continue reading

Abolish Medical Ethics

Written by Charles Foster

In a recent blog post on this site Dom Wilkinson, writing about the case of Vincent Lambert, said this:

If, as is claimed by Vincent’s wife, Vincent would not have wished to remain alive, then the wishes of his parents, of other doctors or of the Pope, are irrelevant. My views or your views on the matter, likewise, are of no consequence. Only Vincent’s wishes matter. And so life support must stop.’

The post was (as everything Dom writes is), completely coherent and beautifully expressed. I say nothing here about my agreement or otherwise with his view – which is comfortably in accord with the zeitgeist, at least in the academy. My purpose is only to point out that if he is right, there is no conceivable justification for a department of medical ethics. Dom is arguing himself out of a job. Continue reading

In Praise Of Dementia

By Charles Foster

Statistically there is a good chance that I will ultimately develop dementia. It is one of the most feared conditions, but bring it on, I say.

It will strip me of some of my precious memories and some of my cognitive function, but it will also strip me of many of the neuroses that make life wretched. It may (but see below) make me anxious because the world takes on an unaccustomed form, but surely there are worse anxieties that are dependent on full function – such as hypochondriacal worries, or the worry that comes from watching the gradual march of a terminal illness. On balance the trade seems a good one. Continue reading

The Re-Greening of Abraham

By Charles Foster

Some odd alliances are being forged in this strange new world,

I well remember, a few years ago, the open hostility shown by dreadlocked, shamanic, eco-warriors towards the Abrahamic monotheisms. They’d spit when they passed a church.

The rhetoric of their distaste was predictable. The very notion of a creed was anathema to a free spirit. ‘No one’s going to tell me what to think’, said one (we’ll call him Jack), the marks on his wrists still visible from where he’d been chained to a road-builder’s bulldozer. And the content of the creeds, and the promulgators-in-chief, didn’t help. ‘I’m certainly taking no lessons’, Jack went on, ‘from some patriarchal sky-god represented by a paedophilic priest.’

But it’s changed. Jack still heaves bricks through bank windows (he says), and still copulates inside stone circles, but now he’s mightily impressed with Jesus, has a Greek Orthodox icon of the resurrection next to his bong, and pictures of Richard Dawkins and Sam Harris on his dartboard. He’s not alone. He’s part of a widespread movement that is reclaiming and recruiting the intrinsic radicalism of Judaism, Christianity, and Islam in the fight against Neo-Liberalism and the destruction of the planet. Continue reading

Abortion: a Law Unto Itself

By   Charles Foster

Wrongful life cases (typically where a birth has resulted from a failed sterilisation procedure), used to be big business. The parents would sue the negligent steriliser for the costs of bringing up the unwanted child. There was always something distasteful about parents unwishing their child, and this distaste found legal expression in Macfarlane v Tayside Health Board,1  where the House of Lords said that such claims were unlawful. The ratio of Macfarlane was summarised by the Lord Steyn in Rees v Darlington Memorial Hospital NHS Trust:2 Continue reading

The Dangers of Biography

By Charles Foster

A friend of mine has written a brilliant and justly celebrated biography. I am worried about her, and about her readers.

The biography is brilliant and engaging precisely because of the degree of rapport the author has established with her subject, and the rapport she brokers between her subject and her readers. What is the cost of that rapport?

My friend has had to keep the company of her (dead) subject for years. Her book is an invitation to others to keep that company for hours. Two ethical questions arise. Continue reading

The Dangers Of Deferring To Doctors

By Charles Foster

(Image: tctmd.com)

There is a dizzying circularity in much medical law. Judges make legal decisions based on the judgments of rightly directed clinicians, and rightly directed clinicians make their judgments based on what they think the judges expect of them. This is intellectually unfortunate. It can also be dangerous.

There are two causes: Judges’ reluctance to interfere with the decisions of clinicians, and doctors’ fear of falling foul of the law.

In some ways judicial deference to the judgment of professionals in a discipline very different from their own is appropriate. Judges cannot be doctors. The deference is best illustrated by the famous and ubiquitous Bolam test, which is the touchstone for liability in professional negligence cases.1 A doctor will not be negligent if their action or inaction would be endorsed by a responsible body of professional opinion in the relevant specialty.

In the realm of civil litigation for alleged negligence this deference is justified. The problem arises when the deference is exported to legal arenas where it should have no place. The classic example relates to determinations of the ‘best interests’ of incapacitous patients. Something done in relation to an incapacitous patient will only be lawful if it is in that patient’s best interests. Continue reading

Hell, Damnation, The Royal Wedding, And The Thrashing Of Schoolboys

By Charles Foster

Image: Holly Fisher, a Conservative Christian blogger from West Virginia, posing with gun, Bible, and US flag:  from www.nydailynews.com

There was a near universal consensus that Bishop Michael Curry’s sermon at the wedding of Prince Harry and Meghan Markle was magnificent.  ‘Frock Star’, panted the Sun.  The Bishop ‘stole the show…and is the ‘new Pippa Middleton’’ He left for the US, the Sun continued, ‘leaving Britain still raving about his electrifying sermon.’ The Bishop ‘just stole the show’, said Vox.com ‘Prince Harry and Meghan were all but upstaged by the Episcopal priest’s fiery sermon….You might say Curry just made the Anglican communion great again.’

‘The Rev Michael Curry’, tweeted Ed Miliband, ‘could almost make me a believer, ’ and Piers Morgan tweeted: ‘Wow. Still reeling from Rev Curry. What a moment. What a man!’ The BBC commentator Jeremy Vine said that the preacher was ‘doing 50 in a 30 zone, and it’s brilliant.’ Continue reading

Tongue Splitting, Nipple Excision, And Ear Removal: Why Prosecute The Operator But Not The Customer?

By Charles Foster

Image: ‘Split tongue: procedure, safety, result’: Tattoo World: Standard YouTube licence.

The appellant in R v BM was a tattooist and body piercer who also engaged in ‘body modification’. He was charged with three offences of wounding with intent to do grievous bodily harm. These entailed: (a) Removal of an ear; (b) Removal of a nipple; and (c) division of a tongue so that it looked reptilian. In each case the customer had consented. There was, said the appellant, no offence because of this consent.

Where an adult decides to do something that is not prohibited by the law, the law will generally not interfere.

In Schloendorff v Society of New York Hospital (1914) 105 NE 92 Cardozo J said:

“Every human being of adult years and sound mind has a right to determine what shall be done with his own body.”[1]

This principle has been fairly consistently recognised in the English law.[2] Thus, for instance, In In re T (Adult: Refusal of Treatment, Butler-Sloss LJ cited with approval this section of the judgment of Robins JA in Malette v Shulman[3]:

‘The right to determine what shall be done with one’s own body is a fundamental right in our society. The concepts inherent in this right are the bedrock upon which the principles of self-determination and individual autonomy are based. Free individual choice in matters affecting this right should, in my opinion, be accorded very high priority.’ Continue reading

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