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Shifting Dynamics in Medical Law

20th July 2023

We are delighted to be awarded SLS small events and projects funding for our event ‘Shifting Dynamics in Medical Law: New Spaces, Temporalities and Actors’. The workshop will explore the shifting landscape of medical law as a discipline, from one which is focused on static analysis of legal doctrine to one which is attentive to the different spatial, temporal and agential dynamics which influence the way the law operates in practice.  The purpose of this workshop is twofold:

To explore the current research that is engaging with medical law in this more dynamic way and offer a space to carefully consider what this means for the field.

To develop a network of scholars working in this area, including PGR and ECR scholars, in order to enable future collaborations in research and teaching.

Traditional medico-legal scholarship has focussed more discretely on the text of the law and its judicial application, or interactions between medical law and ethics. In practice, however, the law is refracted through the realities of those upon whom it acts. This is particularly important in the context of medical law, which as a discipline is deeply connected with the “human condition” (Brazier, 2022). The dynamics of the law and its impact are influenced by a myriad of factors including place, time, people (beyond medical professionals) and circumstance. In 2016 John Harrington published ‘Towards a Rhetoric of Medical Law’ which identified the ideological and rhetorical significance of factors such as time and space in understanding medical law as a distinct discipline. We will build upon his attentiveness to these factors, but in a more material sense, demonstrating that they hold wider relevance to medico-legal analysis. By exploring these influences, we can facilitate a more thorough understanding of medical law as a “lived” rather than merely technical discipline (Cloatre 2018, 101).

Looking at recent and ongoing research in medical law, one can detect an undercurrent of increasing recognition of the influence of time, spaces and actors beyond medical professions, can have on the operation and impact of medical law. For example, work produced during the pandemic implicitly engaged with the relationship between law and place – as procedures which would traditionally occur in a healthcare setting, such as abortions, were able to be undertaken at home. The abortion example is particularly pertinent as the changes regarding at home abortion provision which were instated during the pandemic have not only been made permanent, but have also generated a substantial body of medical law scholarship. Similarly, there was a renewed focus on place of birth and the (un)availability of home births during the pandemic, particularly given restrictive rules around birth partners in hospital spaces (Nelson and Romanis, 2021).

Traditional medical law scholarship has also focussed on the regulation of the relationship between doctor and patient. However, there is growing acknowledgement of the fact that other actors (from both within and outside of traditional healthcare professions) and other relationships operate within the healthcare context. For example, translators and interpreters can play a key role in informed consent processes, as seen in Rajatheepan v Barking, Havering and Redbridge NHS Foundation Trust [2018] EWHC 716 (QB). Yet the precise role of translators as active agents in consent processes is yet to be explored by medico-legal scholars. It is necessary to consider to what extent these different types of actors can be brought within the existing medical regulatory frameworks, to what extent they challenge prevailing laws and norms, and what impact their presence has on the dynamics of medical law. Recognising the insights that other people / actors / professionals can offer plays a generative and important role in expanding the discipline in medical law.

Moreover, scholars are increasingly engaging with the importance of temporality in legal scholarship, but the role of this in shifting or challenging notions of time that currently shape and inhabit medical law is underexplored. What happens to medical law, for example, when non-linear dynamics of time are brought into play which challenge teleological ideas of progress and human development? What happens when traditional framings of ‘emergency’, which underpin the doctrine of necessity and departure from ‘normal’ modes of consent, are challenged? (see e.g. Garland and Travis (2020)).

Our aim with this workshop is to bring these considerations to the fore, to facilitate more explicit engagement with the dynamic relation between space, time, and different actors – exploring how they shape and interact with each other, and what that means for medical law. We hope this workshop created a space to bring new voices and methods in medical law to the fore, serving as a catalyst for future work and collaboration. The call for participants and speakers will be released in Autumn 2023.

Beverley Clough and Anna Nelson

Bibliography

Anna Nelson and Elizabeth Chloe Romanis, ‘The Medicalisation of Childbirth and Access to homebirth in the UK: Covid-19 and Beyond’ (2021) 29(4) Medical Law Review 661-687.

Emilie Cloatre in ‘Towards a Rhetoric of Medical Law’ (2018) Law and Humanities 12 [1]: 93 – 115, 101.

Fae Garland and Mitchell Travis, ‘Temporal Bodies: Emergencies, Emergence, and Intersex Embodiment’ in Chris Dietz, Mitchell Travis & Michael Thomson (eds) Jurisprudence of the Body (Palgrave Macmillan, 2020).

John Harrington, Towards a Rhetoric of Medical Law (Taylor & Francis, 2016).

Margaret Brazier, ‘Time Have Changed?’ (2022) Medical Law Review 30 [2]: 213 – 215

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