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Decision Making

Damages and communitarianism

By Charles Foster

The Lord Chancellor recently announced that the discount rate under the Damages Act 1996 would be decreased from 2.5% to minus 0.75%. This sounds dull. In fact it is financially tectonic, and raises some important ethical questions.

In the law of tort, damages are intended to put a claimant in the position that she would have been in had the tort not occurred. A claimant who, as result of negligence on the part of a defendant, suffers personal injury, will be entitled to, inter alia, damages representing future loss of earnings, the future cost of care and, often, private medical and other treatment.

Where damages are awarded as a lump sum, there is a risk of over-compensating a claimant. Suppose that the claimant is 10 years old at the time of the award, and will live for 70 years, and the future care costs are £1000 a year for life. Should the sum awarded be £1000 x 70 years = £70,000? (70, here, is what lawyers call the ‘multiplier’). It depends on the assumption one makes about what the claimant will do with the lump sum. If she invests it in equities that give her (say) an annual 5% return, £70,000 would over-compensate her.

In the case of Wells v Wells1, the House of Lords decided that, to avoid the risk of under-compensation, claimants should be treated as risk-averse investors. It should be assumed, said the House, that the discount rate should be fixed by reference to the return on index-linked gilts – Government securities. The rate was 2.5% from 2001 until February of this year. The reasons for the change to minus 0.75% are here. Read More »Damages and communitarianism

The bright side of Brexit

Let’s suppose, entirely hypothetically and for the sake of argument, that Brexit is a disaster for the UK. Let’s suppose that sterling crashes; that foreign travel is punishingly expensive and that, if you can afford to go abroad, you’re a laughing stock. Let’s suppose that the Treasury’s estimates of billions of pounds of losses each year are reasonably accurate; that unemployment rises; that credit ratings plummet. Let’s suppose Brexit creates a corrosive tide of racism; that things that should never be said, and can never be unsaid, are shouted at high volume. Let’s suppose that there’s a torrential brain drain; that UK universities fall down the international league tables; that the innovative treatments prescribed (to private patients only, unfortunately – no money left for the NHS) by the UK’s (predominantly white) doctors are all devised in New York, Paris and Rome rather than London and Leeds. Let’s suppose that the environment, unprotected by EU legislation, is trashed, and that Scotland leaves the UK.  Let’s suppose, too, that nervousness about all this creates an increasingly authoritarian style of government .

If all that happens, it’ll be great. At least if you’re a consistent utilitarian. The horror of the UK’s experience will strengthen the EU and prevent other countries from thinking that they should leave the Union – which would have similarly disastrous results for them and, if the EU itself dissolves, tectonic consequences for the stability of the world.Read More »The bright side of Brexit

Our special treatment of patients in a vegetative state is a form of cruel and unusual punishment

by Professor Dominic Wilkinson, @Neonatalethics

Professor of Medical Ethics, Consultant Neonatologist

 

Our society has good reason to provide special treatment to people with severe brain injuries and their families.

But our current “special treatment” for a group of the most severely affected people with brain injuries leads to devastating, agonising, protracted and totally preventable suffering.

Read More »Our special treatment of patients in a vegetative state is a form of cruel and unusual punishment

Veterinarians and the best interests of animals

By Charles Foster

English law has traditionally, for most purposes, regarded animals as mere chattels. There is now animal welfare legislation which seeks to prevent or limit animal suffering, but provided that legislation is complied with, and that no other relevant laws (eg those related to public health) are broken, you are free to do what you want with your animal.

Veterinary surgeons are in an interesting position. The UK regulatory body for veterinarians, the Royal College of Veterinary Surgeons (‘RCVS’) publishes a Code of Professional Conduct. This provides, inter alia:

‘1.1  Veterinary surgeons must make animal health and welfare their first consideration when attending to animals.’

‘2.2  Veterinary surgeons must provide independent and impartial advice and inform a client of any conflict of interest.’ 

‘First consideration’ in 1.1 is a rather weasly formulation. Does it mean that it is the overriding consideration, trumping all others, however weighty those others might be? Or the one that veterinarians ought to consider first, before moving on to other criteria which might well prevail?Read More »Veterinarians and the best interests of animals

Brexit: lessons from the law

37% of the UK electorate voted to leave the European Community – slightly more than voted to remain. There is evidence that some of them regret their votes. The former editor of the Sun, Kelvin Mackenzie, who voted ‘Leave’, has spoken publicly about his ‘buyer’s remorse’.  Others have indicated that they would not vote ‘leave’ again.

There are calls for a second referendum, generally based on assertions that the ‘Leave’ campaign made misrepresentations (for instance about how money saved by leaving the EU would be spent), or on the contention that an issue as constitutionally tectonic should not be decided on such a slender majority, or the observation that an overwhelming number of young voters (who will be affected by the decision for the longest) voted to remain.Read More »Brexit: lessons from the law

Private education: in defence of hypocrisy

eton_2855585b(Photo: Daily Telegraph)

I am a bitter opponent of private education. All my political hackles rise whenever the subject is mentioned.

Yet of my four currently school-aged children, one (‘A’) is educated privately (at a specialist choir school), and another (‘B’, who is dyslexic) will shortly be in private education (at a hip, Indian-cotton swathed, high-fibre, bongo-drumming, holistic school). The two others (‘C’ and ‘D’) are currently in state primary schools. There are two older children too (‘E’ and ‘F’) They were both educated privately, at a fairly traditional school.

How can I live with myself?

One way would be to avert my eyes from the apparently plain discrepancy between my actions and my political convictions. That’s often been my strategy. But I want to attempt some kind of defence – at least in relation to A and B, and lay the ground for a potential defence in relation to C and D, should we choose to educate them privately.Read More »Private education: in defence of hypocrisy

Animal suffering and the pointlessness of moral philosophy

(Above image here) Consider the infamous Chinese dog market. Dogs are rounded up, sometimes beaten while still alive (ostensibly to improve the flavour of their meat), killed, and eaten.

Everyone I know thinks it’s obscene, and that the suffering of the dogs cannot possibly be outweighed by the sensual satisfaction of the diners, the desirability of not interfering, colonially, with practices acceptable in another culture, or by any other consideration. It’s just wrong.

‘It’s just wrong’ is the observation that moral philosophers exist to denounce. They draw their salaries for interrogating this observation, exploding its naivety, and showing that the unexamined observation is the observation not worth making.

But what can the moral philosophers bring to the discussion about the Chinese dogs? Alone, and unaided by science, not much. The philosophy turns out to be either (a) reheated science or (b) a description of our intuitions, together with more or less bare assertions that those intuitions are either good or bad. Read More »Animal suffering and the pointlessness of moral philosophy

Mindfulness and morality

Every day, for about thirty-five minutes, I sit cross-legged on a cushion with my eyes shut. I regulate my breath, titrating its speed against numbers in my head; I watch my breath surging and trickling in and out of my chest; I feel the air at the point of entry and exit; I export my mind to a point just beyond my nose and pour the breath into that point. When my mind wanders off, I tug it back.

The practice is systematic and arduous. In some ways it is complex: it involves 16 distinct stages. When I am tired, and the errant mind won’t come quietly back on track, I find it helpful to summarise the injunctions to myself as:

  • I am here
  • This is it

I alternate the emphases: ‘I am here’: ‘I am here’; ‘I am here’; ‘This is it’; ‘This is it’; ‘This is it.’

I note (although not usually, and not ideally, when I’m in the middle of the practice) that each of these connotations presumes something about the existence of an ‘I’. This is less obvious with the second proposition, but clearly there: ‘This’ is something that requires a subject.Read More »Mindfulness and morality

Pre-marital cohabitation endangers your marriage

weepingwomanBy Charles Foster

Marriage is not well served by its defenders. The loudest and best reported of them are often fundamentalist bigots. It’s a shame, for marriage has a lot going for it.

Even if you think that marriage is an anachronistic/bourgeois/theologically contaminated institution, you’ll probably agree that the breakdown of marriages is best avoided. Of course incurably dysfunctional marriages should be ended, but most people aspire to enduring relationships, and the wrench of marital dislocation is emotionally and financially traumatic. If there are children, marriage breakup is painful for the parents and can be enduringly damaging for the children. There are, in short and quite uncontroversially, some significant harms associated with the breakdown of marriages.

How can marriage breakdown – and hence those harms – be avoided?Read More »Pre-marital cohabitation endangers your marriage

The reproducibility problem and the status of bioethics

There is a long overdue crisis of confidence in the biological and medical sciences. It would be nice – though perhaps rather ambitious – to think that it could transmute into a culture of humility.

A recent comment in Nature observes that: ‘An unpublished 2015 survey by the American Society for Cell Biology found that more than two-thirds of respondents had on at least one occasion been unable to reproduce published results. Biomedical researchers from drug companies have reported that one-quarter or fewer of high-profile papers are reproducible.’

Reproducibility of results is one of the girders underpinning conventional science. The Nature article acknowledges this: it is accompanied by a cartoon showing the crumbling edifice of ‘Robust Science.’

As the unwarranted confidence of scientists teeters and falls, what will – and what should – happen to bioethics?

Read More »The reproducibility problem and the status of bioethics