By Graeme Laurie, School of Law, University of Edinburgh
I first met Ken Mason in 1995 when I joined
Edinburgh Law School as a junior lecturer in private law. I had previously read
medical law and ethics at Glasgow University, the only institution at the time
where it was possible to spend two years of Honours study specialising in the
field. Ken Mason had been my external examiner. I had studied using his
textbook, Law and Medical Ethics,
published with Sandy McCall Smith, and then in its third edition. But I had
never met Ken Mason, already a legend in medico-legal lore with a formidable
intellectual reputation. I was nothing short of intimidated - for which read terrified
- when I joined the Edinburgh staff. There was absolutely no cause for concern.
In our first meeting to discuss teaching, Ken immediately put me at ease and
invited me into the academic family: “What do you think we should do, dear boy?”, was one of his first questions
to me. Such openness and generosity of spirit were so typical of Ken, and they
came to define the relationship that we enjoyed for the next 22 years.
Ken and I had a lot of fights. We fought in
his office and we fought in class in front of the students. They were the best
of fights. It was intellectual sparring in the most respectful, and most
uncompromising, of ways. The students loved it, and we loved it. Our work was
better for it. He never let me away with any academic slight-of-hand, nor I he.
He expected nothing less of me. Ken was never happier than when we were
discussing the latest medico-legal case, or the intricacies of the Human
Fertilisation and Embryology Act 1990, as
amended -- “But what does it mean?!”,
he would insist with an accusing stare as if you were personally responsible
for the latest legislative dog’s breakfast!
Ken and I wrote a lot together .
I was privileged to be included on to the authorship of Law and Medical Ethics in its fifth edition, first as a contributor
of a few new chapters, and later as full co-author with Ken when Sandy McCall
Smith moved on from academia. It was hard to lead a new authorial team with
Shawn Harmon and Gerard Porter for the tenth edition in 2016 because this was the
first time without Ken. Yet, Ken’s influence was still felt, and we were
delighted that he contributed the Foreword, written with typical humility:
“Best of luck to one and all! The surface to understanding may be changing, but
we must hope that Law and Medical Ethics
continues to ensure that its signposts are correct and are pursued.” This is
the final challenge of Ken Mason to all scholars in his field.
In the rest of this contribution, I will suggest
ways in which Ken and I would have pursued our collective contribution. In
addition to Law and Medical Ethics,
we wrote many articles and chapters together, the last of which was our joint
contribution to the festschrift for Sheila McLean: Inspiring a Medico-LegalRevolution (Ashgate, 2015) .
In a chapter entitled, Trust or Contract: How Far Does theContemporary Doctor-Patient Relationship Protect and Promote Autonomy? ,
we tackle the emerging concept of vulnerability as an aspect of autonomy
protection and promotion in health and social care law. It stems from the Court
of Appeal ruling in DL v A Local Authority [2012]
EWCA Civ 253.
This case intrigued us for many reasons:
1.
To us, it represented the
latest step in the fetishisation of autonomy in medical law, but in new and as
yet unexplored ways;
2.
It reaffirmed the enduring role
of the inherent jurisdiction of the English High Court to protect vulnerable
persons, raising potentially wide-ranging implications across the entire
discipline of medical jurisprudence;
3.
It broke down barriers between
medical law and other legal fields, including social care, immigration, and domestic
& international human rights, as well as raising important implications for
an ethic of care that can so often be
absent from formal law itself;
4.
It suggested the emergence of a
new path through medico-legal conceptualisations of autonomy and best interests
to date, notably that the binary labels of capacity/incapacity were being recognised
as of limited utility – something we had long argued - and that a Third Way
might be necessary to support people in-between and that would help lead them
through uncertainty and back to autonomy (where this has been questioned); and
finally,
5.
It raised more questions than
it answered, which was always a great source of some new fights!
In Re
DL, a local authority raised questions about the treatment of an elderly
couple being cared from by their 50-year-old son, including alleged threats and
physical abuse, preventing the parents from leaving their home, and obstructing
carers and health professionals. Legally, the parents had capacity as defined
under the Mental Capacity 2005 Act. This meant that the
Court of Protection had no jurisdiction. Nonetheless, the local authority
sought an interim injunction from the High Court via its inherent jurisdiction
despite the fact that it was thought to have been abolished by the 2005 Act.
The central legal issue for the CA was
summed up by McFarlane LJ:
“The question for consideration is whether,
despite the extensive territory now occupied by the MCA 2005, a jurisdictional
hinterland exists outside its borders to deal with cases of ‘vulnerable adults’
who fall outside that Act and which are determined under the inherent
jurisdiction.”
In confirming the enduring nature of the
jurisdiction, the Court of Appeal highlighted a number of important issues:
i. The inherent jurisdiction of the High
Court extends to adults whose autonomy has been compromised by external factors,
such as undue influence, and when this leaves them outside the protection of
the MCA.
ii. The category of persons potentially
caught by the jurisdiction is determinedly open-ended. As Munby J. said in Re: SA (Vulnerable adult with capacity:marriage) [2005] EWHC 2942 (Fam):
“… I would treat as a vulnerable adult
someone who, whether or not mentally incapacitated, and whether or not
suffering from any mental illness, is or may be unable to take care of him or
herself against significant harm or exploitation or who is deaf, blind, or
dumb, or who is substantially handicapped by illness, injury or congenital
deformation. This…is not and is not intended to be a definition. It is
descriptive not definitive.” This was entirely endorsed by the Court of Appeal.
iii. The jurisdiction is aimed at
‘…enhancing or liberating the autonomy of a vulnerable adult whose autonomy has
been compromised by a reason other than mental incapacity…’. Its application therefore covers a potentially
wide range of circumstances, including medical, welfare, social care and
marital cases. However, decisions are not to be taken on behalf of persons and
in their best interests. It therefore raises crucial questions about the nature
and scope of the court’s powers to intervene.
iv. The nature and scope of court powers
are at the same time specific (as complementary to the MCA and the CoP) and
wide-ranging (as stated above). Indeed, the Court of Appeal noted that the exercise
of the jurisdiction should reflect a ‘facilitative, rather than dictatorial,
approach’ towards ‘the re-establishment of the individual's autonomy of
decision making in a manner which enhances, rather than breaches, their ECHR
Article 8 rights.’
For us, this raised a series of issues that
we would have explored much more fully and deeply if time had been on our side.
I intend to do so, alone and with other colleagues committed to continuing the
legacy of Ken Mason. For now, I offer the following tantalising intellectual tidbits
that hopefully will inspire new fights and new contributions to the discipline
of medical jurisprudence that Ken Mason loved and to which he contributed so
much:
·
Who is vulnerable within this
framework, and on what basis is it ethical and morally defensible?
·
What does it mean to enhance or
liberate autonomy in ways that are not unacceptably paternalistic?
·
What are the limits of the
jurisdiction, both legally and ethically?
·
What are the implications of
the jurisdiction for medical jurisprudence generally?
·
What is the future of the
jurisdiction?
As we approach the fifth anniversary of the
Court of Appeal ruling in Re DL
(March 2017), it has been mentioned or considered no fewer than 19 times in
subsequent cases. And, while there has been important professionally oriented
discussion, the academic reaction has largely been muted (with a few notable
exceptions here
and here).
For Ken Mason, this would be a clarion call
to action. His quest for new knowledge and deeper understanding was insatiable.
His curiosity and enthusiasm were infectious. It was an honour to know him and to
work with him. It will be a privilege to attempt to continue his intellectual
legacy.
