Charles Foster’s Posts

Casinos should say: ‘Enough. Go home.’

Over about 14 months, Harry Kakavas lost $20.5 million in a casino in Melbourne. It could have been worse. He put about $1.5 billion on the table. He sued the casino. It knew or should have known, he said, that he was a pathological gambler. It shouldn’t have continued to take his money. It should have protected him from himself. Nonsense, said the High Court of Australia.

Here’s why:

Even if, contrary to the findings of the primary judge, the appellant did suffer from a psychological impairment, the issue here is whether, in all the circumstances of the relationship between the appellant and Crown, it was sufficiently evident to Crown that the appellant was so beset by that difficulty that he was unable to make worthwhile decisions in his own interests while gambling at Crown’s casino. On the findings of fact made by the primary judge as to the course of dealings between the parties, the appellant did not show that his gambling losses were the product of the exploitation of a disability, special to the appellant, which was evident to Crown.

Equitable intervention to deprive a party of the benefit of its bargain on the basis that it was procured by unfair exploitation of the weakness of the other party requires proof of a predatory state of mind. Heedlessness of, or indifference to, the best interests of the other party is not sufficient for this purpose. The principle is not engaged by mere inadvertence, or even indifference, to the circumstances of the other party to an arm’s length commercial transaction. Inadvertence, or indifference, falls short of the victimisation or exploitation with which the principle is concerned.‘ (paras 160-161 of the judgment).

So it all turned on findings of fact (it wasn’t ‘sufficiently evident’ that his losses were the result of a disability, and if they were, they weren’t the product of a disability ‘special to the appellant.’)

That last criterion is interesting. The court seems to be implying that everyone who puts themselves in the position of losing large amounts of money in a casino is necessarily not quite right in the head. To establish liability you need a degree of vulnerability over and above that possessed by the ordinary punter. By accepting the trial judge’s finding that Kakavas did not suffer from a ‘psychological impairment’, the court was presumably saying: ‘Right: so Kakavas is weak and easily exploited: but that’s true of everyone who walks through the door, buys some chips and sits down at the table. That sort of weakness is within the general bell curve of human flabbiness. But Kakavas wasn’t particularly, dramatically, visibly weak.’ Continue reading

Non-consensual testing after needlestick injury: A legal and ethical drama

By Charles Foster and Jonathan Herring

Scene 1: An Intensive Care Unit

Like many patients in ICU, X is incapacitous. He also needs a lot of care. Much of that care involves needles. Late at night, tired and harassed, Nurse Y is trying to give X an intravenous injection. As happens very commonly, she sticks herself with the needle.

Nurse Y is worried sick. Perhaps she will catch HIV, hepatitis, or some other serious blood-borne infection? She goes tearfully to the Consultant in charge.

‘Don’t worry’, he says. ‘We’ll start you on the regular post-exposure prophylaxis. But to be even safer, we’ll test some of X’s blood for the common infections. I doubt he’ll be positive, but if he is, we’ll start you straight away on the necessary treatment. We needn’t take any more blood: there are plenty of samples already available.’

A sample of blood is submitted for analysis. Continue reading

What happens when you die

I have just watched someone die. Just one person. But a whole ecosystem has been destroyed. Everyone’s roots wind round everyone else’s. Rip up one person, and everyone else is compromised, whether they know it or not. This is true, too, for everything that is done to anyone. Death just points up, unavoidably, what is always the case.

This is trite. But it finds little place in bioethical or medico-legal talk. There, a human is a discrete bio-economic unit, and there’s a convention that one can speak meaningfully about its elimination without real reference to other units.

In some medico-legal contexts this is perhaps inevitable. There have to be some limits on doctors’ liability. Hence some notion of the doctor-patient relationship is probably inescapable, and the notion requires an artificially atomistic model of a patient.

But ethics can and should do better. Continue reading

Facebook: You are your ‘Likes’

By Charles Foster

When you click ‘Like’ on Facebook, you’re giving away a lot more than you might think. Your ‘Likes’ can be assembled by an algorithm into a terrifyingly accurate portrait.

Here are the chances of an accurate prediction: Single v in a relationship: 67%; Parents still together when you were 21: 60%; Cigarette smoking: 73%; Alcohol drinking: 70%; Drug-using: 65%; Caucasian v African American: 95%; Christianity v Islam: 82%; Democrat v Republican: 85%; Male homosexuality: 88%; Female homosexuality: 75%; Gender: 93%. Continue reading

Too long in gestating: an overdue inquiry into the Abortion Act

Whatever your view of abortion, there are too many abortions, and too many of them are too late. Even abortion’s fiercest advocates don’t pretend that it’s a Good Thing – just the lesser of two evils.

In 2010 there were 189,574 abortions in England and Wales – an 8% increase in a decade. The tightly policed regime envisaged in 1967, when the Act became law, hasn’t existed for ages, if indeed it ever did. There is abortion on demand, whatever the statute book says.

1967 was a long time ago. There have been many medical advances and societal changes since then. It’s time to take stock of the Act.

That’s what a recently announced cross-party commission, to be chaired by Fiona Bruce MP, will do.

It will focus, rightly, on two issues: medical advances and attitudes to discrimination. Continue reading

Abortion and the cognitively impaired mother

It will be interesting to watch the reception of a recent Court of Protection case, as yet unreported, in which a woman with profound learning difficulties was found to have capacity to decide not to terminate her pregnancy.

As so often, the case decided nothing new. But it is a timely reminder of the trite but often overlooked principle that capacity is not an all or nothing thing. The question: ‘Does she have capacity?’ is always dangerously incomplete. The correct question is always ‘Does she have capacity to decide X?’

There was no doubt that she did not have capacity to manage many aspects of her affairs. She was in the bottom 1% of the population so far as intellectual function was concerned. Deputies were appropriately appointed. But, so far as the continuation of her pregnancy was concerned, so what?

It was decided as a matter of fact that she had capacity to decide whether or not to continue with, or to terminate, the pregnancy. And that meant that the Court of Protection had no jurisdiction to decide the matter. No best interests determination could lawfully be made. Continue reading

Informed consent deserves a little less respect

The conclusions of a ‘citizens’ jury’, reported recently in the British Medical Journal [1] shed light on some important weaknesses in the doctrine of ‘informed consent’. The doctrine is commonly thought of as canonical. Be careful about questioning its exalted status: you’ll be branded paternalistic at best, and the indictment may well involve unflattering comparisons with Dr. Mengele.

The ‘jury’, composed of 25 women,  commented on how a leaflet on breast cancer screening should be re-drafted. The jury preferred:

- the term ‘overtreatment’ to ‘over-diagnosis’

-to express benefits in the language of lives saved rather than deaths avoided

- to talk about ‘benefits’ and ‘risks’ rather than ‘pros’ and ‘cons’

- to begin the leaflet by an up-beat reference to the numbers of lives saved by screening, followed by the caveat that a small number of women would be over-treated.

What was the priority: reassurance or accuracy? The majority (15), wanted both; 3 thought that reassurance was most important; 7 thought that accuracy was the priority.

How should one list the benefits and harms? Four thought they should be listed together in the same sentence, 8 that they should be listed separately, and 12 for mentioning them first separately and then together.

The point of all this  is that there are innumerable different ways, all of which would be smiled on by Bolam [2], in which entirely accurate information can be conveyed. And yet tiny nuances are seen by the receivers of the information as significant. Continue reading

A Dyslexic boy in a Trojan horse

‘Come in’, said the Well Known Educational Psychologist. We did. ‘Please sit down’, she said, and we did. She didn’t waste time, and quite right too. We wanted to know.

‘Tom and I have had a very interesting afternoon.’ That sounded bad.

‘He’s a very able child indeed’. That sounded worse, because it came with the emphatic pause that always indicates a big ‘but’.

In the pause I wondered why we’d done this. Why we’d taken a little boy out of the woods and out of his playground to have someone fumble inside his head with blunt tools: indices, probes, inventories, and assumptions about normality.

‘He’s quite dramatically dyslexic, I’m afraid.’ My wife shared her fear. There was a lot of it sloshing around. ‘But his IQ is so high that he’ll be able to use lots of coping strategies. And he’s still very young: there’s lots that can be done.’ And she told us what it was. Regulations could be invoked, tribunals could be convened, cards could be flashed, phonemes could be chanted. He could be imprinted like other children. It would just take longer. It would be hard work, for Tom and for us, but there was every reason to be hopeful of a ‘good result’.

And what the hell did that mean? I asked myself. I was too polite to ask her. I didn’t want a result. I wanted my son. Continue reading

Nine to five philosophers

Owen Barfield was lunching in C.S. Lewis’s rooms. Lewis, who was then a philosophy tutor, referred to  philosophy as ‘a subject’. ‘”It wasn’t a subject to Plato”, said Barfield, “It was a way.”’1

It would be dangerous for a modern professional philosopher to say that her philosophy was her ‘way’. I can well imagine the responses. ‘She’s lost objectivity’. ‘She’s a preacher, not an academic.’ ‘Most of us  were disabused in our first week as undergraduates of the childish notion that philosophy was about the meaning of life. She obviously missed that lecture. She was probably at a prayer meeting instead.’

For the scoffers, philosophy is a job. It’s something they do from nine to five. Then, when they leave the faculty, they walk out into the world of angst and bereavement and sick children, and begin, without reference to the day job, to try to puzzle out the meaning of the world and of their own place in it. The job, often, is about exactitude – about ensuring that every step in an examined argument is unimpeachably rigorous. But stop and ask them whether, as a result of the rigour, the argument can now be relied upon to change conduct, and they’ll stop, scratch their heads, and look at you as if you’re simple.

I’m not really accusing them of hypocrisy – of failing to judge themselves by their own standards. For an allegation like that to stick you’d have to show that they knew that the world of the day job was the same as the world outside. The problem is that they don’t perceive the two worlds as having any connection at all. The diagnosis is non-integratedness. It would be unkind to translate it as lack of integrity.

Recently I was reading Charlie Camosy’s book Too expensive to treat? Finitude, Tragedy and the Neonatal  ICU2. It’s rather a good book, but its contents aren’t the point for the moment.

Charlie and I don’t always see eye to eye. He’s a Catholic, for a start, with far too much respect for old dead men for my comfort. But the tone of the book struck me. Here was someone doing philosophy because the answers mattered. He’d unfashionably remembered that ‘philosophy’ means the love of wisdom. He approached the issues reverentially but insistently, determined not to let them go until he knew that they had something useful to say to  an artificially ventilated child.

No, this doesn’t mean that the book is a Catholic polemic; or that he’s mainly interested in crafting an argument that accords with the ruling Encyclicals; or that he’s trying to ensure his back will be covered when he next slinks into a confessional;  or that it’s a set of inevitable inferences from a set of a priori assumptions; or that it’s humourless, earnest,  preachy or fanatical. Let alone correct. It’s just a book by all of someone, with the intention of deriving principles that  apply to whole, real, humans, rather than to an abstracted portion of a human, or a pastiche of a human. It’s written to appeal to reason, conscience, intuition and hospital accountants, rather than to the Chairmen of grant-giving authorities and tenure committees. It’s the work of someone with a conjoined personal and professional life. That should be unremarkable. It’s actually very unusual.

That it is so unusual is a big problem both for philosophy and philosophers.

[Conflict of interest: Charlie Camosy is a friend. Come to think of it, that's hardly a conflict of interest. He wouldn't stop being a friend if I hadn't written this, won't be more of a friend because I have, and I won't be getting a cut of any book sales this blog might generate.]

References

1. C. S. Lewis, Surprised by Joy, Geoffrey Bles, 1955

2. Eerdmans, 2010

Should you be prosecuted for feeding junk food to your child?

 By Charles Foster

Fast food permanently reduces children’s IQ, a recent and unsurprising study reports.

What should be done? The answer is ethically and legally simple. Parents who feed their children junk food, knowing of the attendant risks, are child-abusers, and should be prosecuted. If you hit a child, bruising it, you are guilty of a criminal offence. A bruise on a child’s leg is of far less lasting significance than the brain damage produced by requiring a child to ingest toxic junk. A child injured by a negligent or malicious parent can also bring civil proceedings against the parent.

The findings of the recent study mirror those in other jurisdictions. And now that they have been widely disseminated it will be hard for parents to plead ignorance. Continue reading

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