Law

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A history of a stormy marriage

Law and healing is a colourful and critical account of the longstanding ‘marriage’ between two fundamental pillars of human society, law and medicine. The book addresses medico-legal history, exploring aspects of English law’s fascinating and sometimes acrimonious relationship with healing and healers. It challenges assumptions that medical law is new and that when law engaged with medicine, judges deferred to the ‘medical man’. It traces the regulation of healing from the dominance of the Church, and goes on to examine how the battles between different groups of lay ‘doctors’, physicians, surgeons and apothecaries were fought out in the law courts, the Royal Court and Parliament. Malpractice litigation and predictions of malpractice crises are shown to date back to the fourteenth century. Evidence of judicial deference is scant until late in the nineteenth century. Medical law today addresses moral dilemmas arising in medical practice and biomedical science. Considering historical perceptions of the human body from the womb to the grave, this work identifies themes persisting through medico-legal history and how history repeats itself. The book assesses both how English law responded to changes in ‘scientific’ understanding of bodies and how ‘science’, or what was thought to be science, influenced law. Bizarre theories about biology are seen to buttress laws of primogeniture and legal incapacities imposed on married women. The book considers how in the nineteenth century medical practitioners gradually acquired a strong voice in law-making on morals as much as medical practice.

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Margaret Brazier

Chapter 2 addresses the presence of a third party in the marriage of law and healing, the Church, exploring the relationship between three key actors in the formulation of law relating to healing, the Church, Parliament and medical practitioners. The chapter outlines how, before the Reformation, the Church in Rome enacted rules in canon law regulating healers. It identifies the enduring influence of canon law on the organisation and regulation of medical practice. The prohibition on practising surgery imposed on most clerics by the Lateran Council 1215 is discussed as a prime example of such influence, driving surgery out of the monasteries and contributing to the development of the tripartite division of physicians, surgeons and apothecaries. The role of the Church as the principal provider of healing free of charge in the monastic hospitals is analysed. As more laymen began to practise, and the monastic hospitals declined, pressure to reform regulation grew. An attempt to establish a nationwide system enforced by the King’s officers, the Sheriffs, failed in the chaos following the death of Henry V. In 1511 the Crown intervened to create a national system to regulate physic and surgery endorsed by Parliament in the Act ‘for the Appointment of Physicians and Surgeons’. The Church did not disappear from engagement with healing – it became a regulator. The 1511 Act entrusted implementation of the licensing process to the bishops.

in Law and healing
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Margaret Brazier

Chapter 5 looks at medical litigation. Clinical negligence litigation often gives rise to acrimony between lawyers and doctors. Doctors regularly predict a ‘malpractice crisis’. Patients complain that the systems for redressing harm caused by medical negligence are inadequate. Chapter 5 shows that these concerns are not new. As J B Post noted, the ‘medieval medical practitioner, like his fellows of every age, was vulnerable to accusations of negligence’. The fundamental principles relating to liability for medical negligence are seen to have deep roots. By way of illustration, a number of cases stretching back to 1329 are examined. It will be seen that at least before the end of the nineteenth century there is little evidence of judicial deference to medical opinion. The surgeon treating human patients was treated no differently to the farrier (horse doctor). Such expert evidence from medical practitioners as was available was accorded no special consideration, as was to be the case in the Bolam era. Chapter 5 explores the impact of developments in ‘scientific’ medicine, contemporaneous developments in the general law relating to expert testimony and the influence of the Medical Act 1858.

in Law and healing
Why bother?
Margaret Brazier

Chapter 1 explains why we should bother, setting out the case for the importance of medico-legal history. It challenges assumptions that medical law is new, and that, when law did engage with medicine, judges showed blind deference to the ‘medical man’. The chapter argues that, to the contrary, medical law has a rich history stretching back several centuries. The law courts, the Crown and Parliament were all regularly engaged with medicine. Setting the scene for the following chapters, Chapter 1 sketches out the organisation of health care from circa the sixteenth to the start of the twentieth centuries. It demonstrates that demand for health care has always been high. Our ancestors were as anxious about their health as we are and had access to a range of diverse healers. Doctors look very different following the tripartite division of medicine common in Continental Europe and divided into the three orders of physicians, surgeons and apothecaries, referred to in this work as orthodox practitioners. Each of the orthodox had its own medical corporation and the three orthodox groups were often at odds resorting to the courts to fight their internecine battles. The only matter on which the orthodox agreed was their loathing of the many traditional healers and again the law courts were the fora where the dispute was played out. The impact of the Medical Act 1858 and the contemporaneous development of biomedical science based on laboratory investigation, rigorous testing and assessment of results are noted.

in Law and healing
Margaret Brazier

Chapter 9 addresses English law and the fetus. While the history of abortion law has attracted more attention from modern medical lawyers than virtually any other topic in medico-legal history, that history itself is as bitterly disputed as the fundamental questions it addresses. Fetal status is not only pertinent to abortion law, and the chapter considers the protection afforded to the not yet born child by the right of a pregnant woman to ’plead her belly’ and the right of a child in utero at the time of their father’s death to the same rights of succession as their born siblings. The first statute criminalising abortion was passed in 1803 (Lord Ellenborough’s Act). After assessing available case law and the writings of English jurists, the chapter establishes that contrary to the claims made by US historian Cyril Means, abortion was a common law crime, albeit one with uncertain boundaries. The series of Acts of Parliament passed from 1803 to 1861 is evaluated and the increasingly draconian approach to abortion assessed. The central theme of this chapter is the role played by medicine in the evolution of the law. Medical practitioners are seen to be close to invisible in the common law era. By 1861 they had become a powerful lobby for stringent legislation and seized control of access to abortion. Moreover, medical practitioners such as Thomas Percival advanced opinions about morality as much as medicine. Doctors it seemed were considered to know best.

in Law and healing
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Mothers, midwives and morals
Margaret Brazier

Chapter 8 places women centre stage illustrating how belief that women were weak and dangerous united medical practitioners and law makers. Medicine, in the sense of theories of the body and sickness, was deployed to make law and justify exclusion of women from public life. One group of women escaped exclusion and the often-forgotten story of ecclesiastical licensing of midwives in the sixteenth and seventeenth centuries is evaluated, highlighting the public duties of the midwife as a guardian of morals as well as the healer caring for birthing women. The sudden demise of ecclesiastical regulation and the take-over of childbirth by the ‘medical men’ is assessed. The imagery of women as both weak and dangerous is shown to buttress the many legal incapacities imposed on women by the common law. Similarly, bizarre theories about reproduction also influenced English law. The chapter demonstrates the high value placed on bloodlines and lineage, what would today be described as genetic identity. It explores the impact of ‘scientific’ (mis)understandings of reproduction in late medieval and early modern England on the development of the law and in particular male primogeniture. The close links between questions of property and reproduction will be analysed and entrenched antipathy to single motherhood examined. The historical themes of emphasis on genetic relatedness, wariness of certain kinds of parenthood and questions of access to regulation of reproduction will be shown to be instructive to modern debates on reproductive medicine and the law.

in Law and healing
Regulation and reputation
Margaret Brazier

Chapter 3 addresses the tripartite division of labour and the regulation of physicians, surgeons and apothecaries, from c. 1511–1858. It focuses on the battles between the three groups of orthodox practitioners, battles often fought out in the law courts. The Crown, Parliament and the courts were all involved in addressing the claims of the medical corporations to regulate their own members, and in the case of the College of Physicians to regulate the whole domain of medicine. The extensive powers of self-regulation granted to the College are considered, as is the anomaly that the College’s writ ran only in London and its environs. It highlights the role of the criminal process regulating healers and examines the series of challenges to the ‘mighty’ College. The chapter addresses the physicians’ unsuccessful efforts to enhance their social status, to be regarded as gentlemen, the equal of lawyers and the clergymen. Nor for the most part did the judges accord deference to the medical men. Sir Edward Coke declared that any university-educated judge could determine if a medical case had been handled correctly. The chapter charts the skirmishes between physicians, surgeons and apothecaries evaluating the impact of dramatic conflict between physicians and apothecaries in Rose v College of Physicians heard in 1703. Finally, Chapter 3 outlines how in the light of developments in surgery the tripartite division made no sense, regulation in the provinces had more or less broken down entirely and pressure for reform grew.

in Law and healing
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‘Temple of the soul’
Margaret Brazier

Chapter 7 examines the attitude of the common law and canon law to the living body. It asks how far your body was truly yours to do as you chose with. The answer proved to be – ‘not wholly yours’. Were you a married woman, the several legal incapacities imposed on married women effectively granted sovereignty over your body to your husband. While the courts developed trespass against the person to affirm patients’ rights to say no to their doctor, common and canon law placed limits on what any individual could choose to do or have done to their body. The law set its face against any notion that men or women owned their bodies prohibiting many but not all forms of self-mutilation. The antique crime of maim which limited what any subject of the Crown could have done, or do, to their bodies is considered. And it will be shown that even if maim is obsolete its ghost lives on. Re-attired as ‘public interest’, the House of Lords in R v Brown held that the victim’s consent alone was insufficient to render infliction of actual bodily harm lawful. Harm must be justified in the public interest. In nearly all cases surgery, be it performed in 1500 or 2023, involves harm above the bar set in Brown. But it will be shown that the legality of reasonable surgery was tacitly acknowledged. The gradual recognition of the ‘medical exception’ justifying responsible medical treatment is addressed.

in Law and healing
Open Access (free)
Digital Work and Fragile Livelihoods of Women Refugees in the Middle East and North Africa
Dina Mansour-Ille
and
Demi Starks

In the advent of the coronavirus pandemic and the push to digital work, this op-ed argues that the emerging digital economy can be vital for enabling refugee women in the Middle East and North Africa (MENA) to overcome existing livelihood barriers. Since the outbreak of the Syrian crisis in 2011, over 6.5 million Syrian refugees have been registered by the United Nations High Commissioner for Refugees (UNHCR) globally. Neighbouring countries across the MENA region continue to carry the largest share of the burden. Across the region, refugees live on the margins, in camps, as well as urban and peri-urban communities, and other informal settlements. Existing gender disparities coupled with other social and logistical barriers, as well as restrictive legal and economic structures, exacerbate livelihood challenges for refugee women in MENA. Research demonstrates that the digital economy, particularly crowd and ‘on-demand’ work, could provide opportunities that would enable women refugees to overcome these barriers to work. As it stands, however, the digital economy is still in its infancy, especially in host countries in MENA, and it is still fraught with challenges, including barriers to entry, employee protections and the lack of guarantees to decent work, especially for vulnerable and marginalised communities. We therefore argue that there is a need to direct efforts to maximise the benefits that the digital economy could offer, especially to refugee women – a need that has become even more pertinent since the coronavirus pandemic.

Journal of Humanitarian Affairs
Intermediating the Internet Economy in Digital Livelihoods Provision for Refugees
Andreas Hackl

The global spread of online work opportunities has inspired a new generation of market-based aid that connects forcibly displaced people to a transnational internet economy. Because refugees face barriers to making a livelihood online, aid organisations and private enterprises support them by building bridges across digital divides, connectivity problems or skill gaps. They thereby become intermediaries and brokers that facilitate connections between refugees and online income opportunities, which often lack decent working conditions and adequate protections. Because digital livelihood initiatives lack the power to reshape these conditions and the value of work in the internet economy, they fail to become mediators with a transformative impact. The result is that the internet economy reshapes livelihoods provision far more than aid can reshape its disempowering effects, despite successes in driving forward refugees’ digital inclusion. Based on more than three years of research including interviews, field visits and surveys, this article foregrounds the current risks that result from the inclusion of refugees into precarious forms of online gig work. To ensure a decent future of work for refugees in the internet economy, the current push for digital livelihoods will require an equally strong push for stronger protections, inclusive regulations and rights.

Journal of Humanitarian Affairs