AS a young medical student in the US, I was also privileged to cover medical law — a relatively new addition to the academic curriculum.
The subject was enormously popular among the students and its journey from being a minor legal subject to a fully-fledged member of the legal academy has been a rapid one.
While the exact shape and focus of the subject continued to be the subject of lively debate, cases emerged in the relatively short history of medical law that became key milestones in the development of the case law and proved to be key for some medical lawyers.
Although there were complaints that the subject had for too long been omitted as a consideration of public health law, it was a sign of its maturity that there was serious debate about the responsibility of medical law.
This is most apparent in the debates over whether we should be discussing ‘medical law’ or ‘health law’.
A case on the mental capacity to consent to sexual relations, for example, may well claim to be a criminal law case, a family law case or a medical law case, depending on one’s preference.
In Zimbabwe, this would include traditional/cultural, religious (Apostolic sects, among others) as well as ethnicity, to mention a few.
Further, there were extensive debates over how issues were to be presented.
The issues discussed by medico-lawyers regularly appear in the media and are some of the most profound issues facing societies; whether it be how to ration medical treatment, given scarce resources; or the moral status of a foetus; or the right to life; cases which genuinely form the bedrock of Western legal systems.
Politics, sociology, LGBTQ studies, feminism, philosophy and medical ethics, among others, all illuminate the issues raised.
Many other perspectives can be added to that list.
For some landmark cases, there was a chasm between the legal landscape, the ethical and the cultural sub-terrain, especially for Africa, including Zimbabwe, whilst for other cases, there were important connections between the law and the underlying ethical assumptions.
Those early foundational cases have provided the seminal and authoritative judgments that have determined the general contours of medical law, and are illustrative of how the law governs the provision of healthcare.
The cases we studied either signposted a new development for medical law, illustrated an important development of the law, or signposted likely future developments of the law.
Cases were explored in their social and historical context to understand better what has influenced the development of the law.
For me, they provided a fascinating insight into the interaction of medical law and the broader social changes to our bodies, illness and medical professionals.
Amongst some, the issues were: refusal of medical treatment; wardship medical treatment; property rights on bodily material; non-consensual medical treatment; conjoined twins surgical separation; male sterilisation; mental patient; sterilisation; mental health; withholding medical treatment; protection of unborn children; disability discrimination; abortion; handicapped children; euthanasia and assisted dying, among other issues.
These cases have since served as important markers between how far the law had come and what else remained to be addressed by the law. But despite the developments in landmark cases, pressing legal issues ‘remained on the horizon’.
For instance, there was still a ‘significant gap’ in the law’s provision for people with mental disabilities.
Here, the ‘gap’ reflected the important distinction between ‘mental incapacity’ and ‘mental disability’.
In 1987, a case of a young girl (almost 18) marked the first opportunity for the appeal courts in the UK to consider the legality of sterilising, for contraceptive purposes, people with learning disabilities who could not give a legally valid consent to the procedure.
In this case there was no apparent medical need for the procedure and the girl had not consented to it; nor was she suffering from a particular disease or illness requiring this intervention; the reasons for sterilising were clearly ‘social’.
The concern for her, expressed by those who were responsible for her care, was the fact that she was a maturing young woman with a developing interest in her own body and the possibility of sexual pleasure, but for whom the risks of pregnancy resulting from sexual contact were considered to be disastrous.
Despite considerable changes to the institutional frameworks that accommodated and supported learning disabled people during this time, the narratives and discourses around disability which were established during the modern period continued to set the scene for this case.
The outcome of the ruling at the time reflected the perceived correctness of the legal processes employed to reach a judgment and the relevance of particular factors to determine the question. This was surprising, given that a number of other jurisdictions had prohibited such sterilisations, mindful of the associations with eugenic-informed health and social policy which had initiated mass sterilisation programmes in many countries.
The mode of reasoning adopted in the case set the tone for subsequent sterilisation cases.
All but two cases concerned the sterilisation of women and most concerned the proposed sterilisation of adults rather than minors.
Judicial deference to medical knowledge, as a determinant of a person’s best interests, continued to dominate proceedings throughout the 1980s, resulting in conceptions of impairment that remained faithful to individual rather than social models of disability.
Decades later, the courts continued to receive applications concerning the proposed sterilisation of adults and young people with learning disabilities.
Until the late 1990s, when there was a gradual shift to a more proactive approach by the judiciary, whereby judges would scrutinise more closely the stated risks of pregnancy and examine the risks associated with the performance of a sterilisation, the courts continued to premise their judgments on unsophisticated accounts of learning disability, which remained steeped in narratives of tragedy and dysfunction through the referencing of the person’s abilities in terms of mental age, his/her functional inabilities and a negation of the possibility of social and emotional advancement. Moreover, the dual framing of the sexuality of people with learning disabilities as either animalistic or child-like foreclosed any sophisticated assessment of how services might support an individual with learning disabilities to lead a sexual life, and ignored what had become, by the 1990s, a well-documented risk of sexual abuse.
Euthanasia’s legal status, also labelled ‘mercy killing’, despite changing attitudes has remained unchanged.
It is generally viewed as set apart from other kinds of homicide, and is still dealt with under the usual law of murder or (if mitigating features apply) manslaughter.
Murder is defined as ‘the killing of another human being with the intention to kill or cause serious bodily harm’, and no exception is made where the killer’s motive was to end the victim’s suffering. However, an exception to the usual inference of an ‘intention to kill’ is made if a doctor is not deemed to have intended a patient’s death if he/she prescribes treatment for the purposes of relieving pain and suffering, but with the known side-effect of hastening that patient’s death.
This is known as the ‘doctrine of double-effect’, and effectively immunises doctors who provide lethal doses of pain medication to dying patients from murder or manslaughter liability.
Dr Tony M. Monda BSc, DVM, DPVM, is currently conducting veterinary epidemiology and agro-economic research in Zimbabwe. E-mail: tonym.MONDA@gmail.com
