Charles Foster

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

Playing the game: a story for the pool-side sun-lounger

It’s still summery, and so here is a little story for the beach or the side of the pool

‘There are challenges, certainly’, said the Boss. ‘But we’re confident that we can meet them. Or at least’, he went on, looking over his glasses for signs of dissent, ‘for a critical mass of stakeholders’.

A graph appeared on the screen at his side. He traced its lines with a red laser dot.

‘Here’, he said, ‘we have the expected rise of temperature with time. And here’ (he stabbed with the dot, as if doing the killing himself), ‘we have the consequent reduction in human population – assuming’ (and he held up a schoolmasterly finger), ‘we don’t have any HR66.’

He sipped some water, and waited for this to sink in. It did.

‘But don’t worry’, he said. ‘There’s good news. We do have HR66. Not enough for everyone, sadly, but enough to ensure that the human baton is passed on. And enough, I’m glad to say, for everyone in this room.’

There was a ripple of relief.

‘And their families, of course’, the Boss continued. ‘Families are very important to us. But all this assumes that you want to have the HR66. No one will make you. But, frankly, what’s not to like? You take a single dose, and you survive. If you don’t take it, you don’t survive. It’s as simple as that. It even tastes of candy floss. It has only one side-effect, and that’s a wholly good thing. It increases – increases, mark you – your IQ. Very, very significantly. By about 100 points, in fact. Not only will you be alive; you’ll be a genius beside whom Einstein would have seemed a hopeless retard.’

One more press of the button, and up flashed the logo of the corporation that manufactured HR66. The Boss didn’t think it relevant to mention his shareholding.

‘Naturally’, said the Boss, ‘we have to vote for this in the usual way. Yes, humanity’s facing apocalypse, and there’s one, and only one way out. But we’ve still got to do things properly. But I expect that we can move to a vote now, can’t we?’

‘I’m sure we can’, agreed the Deputy. ‘You’ve all seen the motion. All those in favour….’

‘One moment’.

The Boss and the Deputy, up on the podium, stared. Everyone else turned. A little man in tweed lisped through a badger’s beard. ‘I’d like some clarification, please.’

‘But of course, Tom’, said the Boss, magnanimous and desperately alarmed. ‘Anything you like.’

No one really knew how Tom had got into the government, or why he wanted to be there. He had no strategically significant connections, no dress sense, no publications other than some monographs on moths and mediaeval fonts, no assets other than a dumpy wife, some anarchic, unwashed children and a small cottage on Dartmoor, and no entries in the Register of Members’ Interests apart from ‘Masturbation’. This entry had caused a terrible storm. He’d been accused of injuring the dignity of the House, but, after expensive legal advice had been taken, it had been ‘reluctantly concluded’ that there was no power to force him to remove it.

‘I’d like to know’, said Tom, ‘who’s going to get the drug. And why them rather than anyone else.’ Continue reading

Sex with corpses might be philosophically cool. But it’s still not a good idea.

It is reported that Jimmy Savile crept at night into the mortuary at Leeds General Infirmary and committed sex acts on corpses.1

So what?

Well, for a start, assuming the acts involved penetration, he had committed a serious criminal offence.2

But shouldn’t we grow up? Shouldn’t we let live, and let the live love the dead? Who was hurt? Isn’t this legislation anachronistic? Doesn’t it stem from superannuated and probably, at root, theological ideas about the sanctity of life – irrationally extended to the sanctity of the dead human body?

If the acts gave Savile pleasure, then what’s the problem? Or, if we grant that the outraged relatives might suffer some distress (because they’ve not read enough philosophy), doesn’t the problem lie only in the fact that the relatives heard about what had happened, rather than in the acts themselves? In which case the real villains are the investigators and the media.

We have strong intuitions about many things. So strong, in fact, that they are often immune to the best arguments of the lawyers and philosophers. Continue reading

Do Not Attempt Resuscitation orders: should you discuss with the patient?

The Court of Appeal has stated that a statement in a capacitous patient’s medical notes that resuscitation should not be attempted (a ‘Do Not Attempt Resuscitation’ Order – DNAR), should usually only be inserted after consultation with the patient: see R (Tracey) v Cambridge University Hospitals NHS Foundation Trust and others [2014] EWCA Civ 822 (17 June 2014).

The facts have been widely aired in the media: see, for example, here.

Mrs. Tracey had terminal lung cancer. Her clinicians indicated in the notes that no attempts at resuscitation should be made. Her family found out about this, and were outraged, saying that the DNAR order should not have been made without consultation with Mrs. Tracey. Their quarrel was not with the medical appropriateness of the determination that resuscitation would not be in Mrs. Tracey’s best interests, but with the procedure  - the failure to consult.  This, they said, violated Mrs. Tracey’s rights under Article 8 of the ECHR.

The Resuscitation Council, intervening, said that a requirement to consult with the patient would interfere with clinicians’ ability to deliver individual and compassionate care. A patient might, for instance, be very distressed by a discussion about a possible DNAR order.

The outcome can be briefly stated:

  • Mrs. Tracey’s Article 8 rights were engaged by recording the DNAR in the notes. This followed from, inter alia, Pretty v UK (2002) 35 EHRR 1.
  • Her Article 8(1) rights were violated by failing to involve her in the process
  • Article 8(2) required the policy adopted by a Trust in relation to DNAR orders to be sufficiently clear and accessible: see Purdy v DPP [2009] UKHL 45; [2010] 1 AC 345.
  • The absence of a mandatory national DNAR policy was not a violation of Article 8. Local policies would, if properly formulated, satisfy the demands of Article 8(2)
  • The concerns of the Resuscitation Council were real, but could be met by an important caveat: there should be consultation with the patient unless the clinician ‘thinks that the patient will be distressed by being consulted and that distress might cause the patient harm.’ Continue reading

Food packaging matters more than informed consent to treatment

Packets of cigarettes carry pictures showing purchasers what their lungs or their arteries will look like if they carry on smoking. Consumers International and the World Obesity Federation are now suggesting that some foods should bear similar images.

Assume for the sake of argument that the practice would be effective in discouraging the purchase of health-truncating foods. If the images work by telling consumers something about what they are buying that they would not otherwise know, surely there can be no coherent objection to them. Knowledge of that sort is always good – assuming that the consumer has a real choice as to whether to buy the bad product or a better one.

If they work by pushing to the forefronts of consumers’ minds information that their grosser appetites conveniently suppress when they are wandering down the mall, there may be an argument against them. This would presumably be on the broad basis that the images manipulate the person away from being what they authentically are (a fructose-guzzling cardiac-cripple-in-waiting) towards something else. This argument would assert that there’s a sort of ethical imperialism at work: that those would stamp pictures of limbless diabetics on junk sweet packs are tyrannously seeking to impose an arbitrary normative idea of the good life.

I have little sympathy with this second view. If anyone says in a normative voice that it’s good to be diabetic, they’re insane. If anyone says in an empirical voice that it’s better to be diabetic than non-diabetic, they’re misinformed. If anyone says in the voice of a hedonistic utilitarian that the overall pleasure gained by the consumption of lard outweighs the detriments, I’d invite them to get thin, do all the Munros, and then revisit their original judgment. If anyone thinks that they’re more authentically themselves by being ill might have a point once their illness is long-standing and has truly become a defining characteristic. But before the illness is triggered, aren’t they more themselves without clogged arteries or the need to inject insulin five times a day?

If the packaging proposal is adopted, some interesting questions arise. Should good foods be branded with pictures of the condition you’ll be in or the advantages you’ll have if you eat them? Aphrodisiac oysters would display the beaming visages of satisfied sexual partners. Green tea would show lean centenarians on trampolines. Or perhaps those good foods should show the things that they’ll spare you: prostate-preserving tinned tomatoes might show an unoccupied midnight toilet.

Perhaps other, wider concerns should feature. Tins of palm oil should show dead orangutans. Milk should show the mournful face of a calf-less cow alongside the pictures of healthy, non-osteoporotic bone-scans.

While it’s easy to multiply absurdities, the proposal is basically a very good thing. It’s a good thing for at least some of the reasons that the notion of informed consent to medical treatment is endorsed. If you’re keen on informed consent to treatment, a fortiori you’ll be keen on food package images. In fact, I suggest, you should be more keen on those images. They’re more important. Continue reading

Notes from a philosophical Starbucks

Modern High Streets in the western world are dreary, wretched places. They’re all the same as each other – brash, jostling queues of the ubiquitous supranationals that are our real governors.

They’ve shut down the shops owned by real people. Each offers a ‘retail experience’ which is identical wherever in the world the shop is. That’s what we want, they tell us confidently. Customers, they say, are nervous, conservative creatures, who need to know that they’ll have the same taste in Des Moines as in Oxford. Eventually, and tragically, they’ll be right.

This hasn’t just happened, of course. It’s the result of a determined and aggressive policy. Real, unbranded people stand no chance before the corporate blitzkrieg.

But at least some people realize that there’s a war on. Here’s Paul Kingsnorth on the Reverend Billy, the founder and leader of the ‘Church of Stop Shopping’: ‘In his stentorian wail…..he will treat the assembled [Starbucks] customers to a sermon on the evils of ‘Frankenbucks’….He will tell them about the battles the company has engaged in to prevent its workers joining trades unions. He will tell them about Starbucks’ corporate policy of ‘clustering’ many outlets at once in parts of town where there are local cafes, and expanding the clusters until only Starbucks is left…’1

 Stirring stuff. But something very similar is happening in the philosophical High Street, without much or any opposition. Continue reading

For theta’s sake, smash up your TV and go for a walk

You can get experienced meditators to produce, on demand, feelings of timelessness and spacelessness. Tell them ‘Try to be outside time’, and ‘try not to be in the centre of space’, and they will.

These sort of sensations tend to happen together – so strikingly so that Walter Stace proposed, as one combined element of mystical experience, ‘non-spatial-and-non-temporal’.1

Why should that be? asked an Israeli research group in a recent and fascinating paper.  And was the generation of these sensations related to alterations in the sense of the body? Continue reading

Medical ethics are ridiculous

In a blistering letter in the current issue of the British Medical Journal, Miran Epstein identifies some of the factors we should consider in assessing the claims of so-called ‘evidence-based medicine’.[1] Nobody rationally disagrees with the suggestion that medicine should have an evidence base, and everybody should agree that in order for medicine to be based on reliable evidence, it should be free of the following ‘polluters’:

  •  financial conflicts of interest
  •  inadequately rigorous selection criteria, outcome measures and criteria of statistical significance
  • the practice of testing products against placebo or no treatment (rather than current treatment), and then shouting ‘Eureka!’
  • recruiting subjects using financial incentives that introduce outcome bias
  • marketing campaigns masquerading as research

Doctors: turn off your computer and listen to your gut

‘Between the NHS and social care, there must be total commitment to ensuring that interaction is paperless, and that, with a patient’s consent, their full medical history can follow them around the system seamlessly.‘ So said Jeremy Hunt,the Health Secretary, on 16 January 2013. And NHS England say that: ‘Our vision is for a fully integrated digital patient record across all care settings by 2018’.

It sounds like a good idea. It’s not. Or not in its present form. Many of the concerns that have been expressed relate to privacy/confidentiality. Those concerns are real. But even if they can be satisfactorily addressed, electronic health records have the potential to do great harm. They divert attention from the patient to the screen, and they cause clinical skills to atrophy.

David Loxterkamp recently observed that the computer in the consulting room is a Frankenstein-like creature: ‘….we have created a place in our exam rooms for a computer that needs our care and feeding. It now directs the flow and purpose of an encounter that once unfolded organically according to the particular needs of the patient.’ The electronic servant becomes the master. Continue reading

Get your nasty Platonic hands off my kids, Mr. Gove

My book of the year, by a very wide margin, is Jay Griffiths’ splendid ‘Kith: The Riddle of the Childscape’ (Hamish Hamilton, 2013). Amongst her many virtues is a loathing of Plato’s Republic. Here she is, in typically swashbuckling style:

Excessive laughter is banned and so is the liquid superfluity of metaphor. Plato would rid his ideal state of anything that could arouse emotion, mischief, wildness or fun….so ghastly is his Republic that it could be interpreted as satire. But, generally, its ambition has been taken with deadly seriousness as a founding text on the education of boys. The purpose of The Republic is to school its youth to be good soldiers engaged in unending war to take the resources of neighbouring lands. It is a handbook for the education of imperialists.

Brick by brick, Plato builds the walls of his citadel of control, hierarchy and obedience. His ideal republic is obsessed with rule – not only the rule of command, but the rule of measurement… the heart of his vision [is] that Apollo, god of measure, metre, civilisation and, surely, god of metronomes, should keep Dionysus, god of the Romantic movement, god of wildness and nature, firmly under his thumb.’ 1

Familiar? It should be – at least to UK readers. It’s the policy of Michael Gove and his rightly vilified Department. They want to produce a generation of nerdish measurers – people who wield rulers rather than wands, and who write in Excel rather than blank verse.

Continue reading

If you’re female, your face is worth 48-67% more than mine

If you’re a young woman, your face is worth between 48-67% more than that of a young man.

That’s the gist of the Judicial College’s Guidelines for the Assessment of General Damages in Personal Injury Cases, 12th Edition (2013) – one of the canonical texts used by lawyers.

For ‘Very Severe Scarring’ ‘in relatively young women (typically teens to early 30s), where the cosmetic effect is very disfiguring and the psychological reaction severe’, the suggested range of damages for pain, suffering and loss of amenity (what lawyers call ‘general damages’) is £39,160 – £78,650. The corresponding figures for males (‘especially in males under 30’) are £24,090 – £53,075.

The editors of the Guidelines are embarrassed by the discrepancy. They point out that it arises from ‘cases that stretch back into the mists of time’, but that  it is ‘nonetheless open to serious doubt that gender itself can be a proper or indeed lawful factor in determining the level of general damages.’ The embarrassment is appropriate. Gender in itself should not be relevant. The Guidelines list the relevant factors: they include ‘the subjective impact of the disfigurement upon the claimant and the extent to which it adversely affects the claimant’s social, domestic and work lives’.

Should the Guidelines declare that, as a matter of policy, the law should refuse to distinguish between facial scarring in males and in females? That, one might think, is an appropriate way for the law to declare its gender-blindness: it might help to nudge society (which the law leads, as well as reflects) in the right direction. But that would be wrong: the fact is that, whether we like it or not, facial scarring matters more to women. We should do our best to change the attitudes that make this the case, but it is the case, and in compensating claimants, judges should not pretend that we live in a liberal utopia in which people are not judged (by themselves and others) on the basis of the shape or colour of their face. Similarly, when assessing damages for loss of earnings, the law should not pretend that the legislation which prohibits discrimination on grounds of disability actually works.

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