by Charles Foster. Oxford: Hart Publishing, 2009. 200pp. Paperback. £22.50/$45.00. ISBN: 9781841139296.
Reviewed by Gonzalo Arruego, Public Law Department, University of Zaragoza, garruego [at] unizar.es.
To weigh up the relevance of the many advances in technology and biomedicine in recent decades has become, to some extent, a common place. These advances have been accompanied by equally transcendent changes in the dominant social and cultural values, which, among many other consequences, have led to the reconstruction of the law governing the biomedical context, and especially the patient-doctor relationship, mainly in terms of fundamental rights. For example, Article 1 of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (Oviedo Convention) declares that “Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine”. But they are also the cause of many tensions in different areas of the Law. This assertion would be especially true for Constitutional Law and fundamental rights theory, due to the nature of most of the issues involved.
In this sense, lawyers are prompted to give from the existing Law precise juridical answers to the dilemmas and new scenarios derived from those advances which are expected to fit those changing cultural and social values. It has to be stressed, however, that most of the time those answers must be provided, if possible, from juridical structures which were not created to face the new biomedical challenges. Let us think, for example, about the many new problems arising from the perspective of fundamental rights such as the right to life, to physical and moral integrity, to privacy, and to freedom of religion or beliefs.
This is the framework of CHOOSING LIFE, CHOOSING DEATH, by Charles Foster, in which he engages in an “assault” on the alleged pre-eminence and hegemony of the principle of autonomy in the English medical law context. Accordingly, the intention of the book is to examine “the extent to which autonomy is already the ruling principle in English Medical Law,” to propose other different principles that should come into play, mainly non-maleficence, beneficence and justice, and to indicate “how those other principles might affect the law” (p.6). With this purpose, Foster examines some of the most relevant issues in English Medical Law according to the following thematic structure: “Before life” questions, “Between birth and death” issues, and “After death” problems. [*792]
The first part of the book is thus devoted to the principles that, in Foster’s view, rule and should rule English medical Law. In this sense, the first chapter (“Autonomy, Challenging the Consensus,” pp.3-15) is intended to set out the elements of a “fundamental critique of the extraordinary status of autonomy,” while the second (pp.17-19) suggests other principles different from autonomy that should contribute to medical ethics and medico-legal debates. It has to be stressed, however, that the reader should not expect a deep analysis of the meaning and legal implications of principles, such as non-maleficence, beneficence or justice, as that is not the intention of the author; principles which, according to Foster, are almost “ignored and at great cost” and are expected to play a fundamental role in his book. Finally, Chapter Three (pp.21-28) examines, almost exclusively, and defends, the doctor’s and even administrative staff’s conscientious objection clause especially in abortion procedures.
The second part of the book, dealing with “Before Life” biomedical issues, opens with a focus on “Reproductive autonomy” (pp.31-39). Based on previous case-law, Foster examines the questions of whether one should be required to reproduce (Blood and Evans) and whether you should be entitled to have a child in three different contexts: adoption (with special attention and critique of how the criterion “best child interest” is understood), prisoners [ELH and PHB v UK, ECHR (1997)] and assisted reproduction procedures. The final purpose would be, according to Foster, “to make the point that once we step out the medical world we do not expect autonomy to have the last word” (p.38). He then addresses the problematic question of “Abortion” (pp.41-54), beginning with the assumption that “There is no reason to distinguish a foetus in utero and a child ex utero” (p.53). Finally, Foster also explores “Questions raised by reproductive technology” (‘pp.55-62), following the same line of reasoning with the exposition of different case-law material and with special attention to the issues raised by genetic selection.
In the most extensive section of the book, part three, Foster deals with different biomedical matters, grouping them with the generic title of “Between birth and death.” Chapter Seven examines, again departing from real case-law such as the Sue Axon case, some of the problems posed by “Confidentiality” (pp.65-82) in biomedical law. Chapter Eight is devoted to “The Law of Consent” (pp.83-125), which Foster defines as the “fundamentalist heartland of traditional autonomy” (p.82). The chapter opens with the examination of a diverse set of cases, including REEVES v. COMMISSIONER OF POLICE OF THE METROPOLIS (relating the duty to prevent suicide), R. v. BROWN and OTHERS (concerning consensual sadomasochist sexual intercourse) and the so-called caesarean section cases. Foster then moves to the analysis of some problems of the decision making process in the medical context, such as the information required by the exigency of informed consent prior to any intervention in the health field, the limits of consent, the problems posed by Biobanks, and the complex issue of capacity with special attention to children. [*793]
Chapter Nine, entitled “Litigation, rights and duties” (pp.127-132), begins with examination of issues relating to litigation in English tort Law but then moves to the doctor’s duty to treat a patient and the allocation of resources in a public and universal healthcare system and some questions connected – for example, whether a right to demand a certain treatment exists. “Medical research on humans” (pp.133-142) considers the issue of medical research carried out with both competent and incompetent human beings and raises questions regarding the law governing these matters in the UK, the Oviedo Convention and the Helsinki Declaration. It also treats some problematic and controversial cases, such as those depicted in SIMMS v. SIMMS and in some clinical trials carried out by the pharmaceutical industry in the Third World.
The closing chapter of this section (pp.143-161) is devoted to the question of end of life decisions (euthanasia, assisted suicide and advance directives) and, as in the abortion case, Foster’s principles framework is clear from the outset: the principle of sanctity of life and the primacy of the fundamental right to life, which, although controversial, is considered by the author as a “usual and logical hierarchy” as a consequence of the factual argument that “unless one has life, one has nothing to which any article 8 right can attach”(pp.147-148) In exploring this issue, Foster adopts the classical distinction between “the withdrawal of life-sustaining treatment and the performance of an act whose intention is to bring about death,” which is simply described as “the deliberate execution of a patient” (p.149), and shows a clear worry for the questions connected with “competence” and “free choice” in such a complex context.
The final part, “After Death,” is structured in two chapters. Chapter twelve, “Transplantation” (pp.165-171), focuses on live donor transplantations and especially underlines some issues arising when the donor is an incompetent person and the question of whether those donations which imply the death or serious harm to the donor should be allowed. Chapter thirteen (“The ownership of bodyparts,” pp.173-180) describes the main contents of the English Human Tissue Act 2004.
When reading Foster’s book, one should be aware of some special features which are not usually present in what it could be called a “classic” piece of academic work. It has to be underlined, however, that to write an unusual book was Foster’s original intention, at least accordingly to the views and opinions he expresses throughout.
From a strictly stylistic point view, Foster’s anthropomorphic discourse concerning the principle of autonomy, to which most of the time he refers as a real being, is notable. However, problems arise as many times the reader might have the impression that far from being a mere literary device, this anthropomorphic way of writing seems manipulative, a problem which increases as soon as these formal questions are connected to issues concerning the book’s essence. It is not only that the author’s discourse can be perceived as unidirectional, as he continuously presents autonomy as a being with authoritarianism, egocentric or dictatorship manners (autonomy is for example described as “ruthless,” “fat and [*794] brutal in power”), while the other “contenders for a voice” are always described as humble, positive and just looking for their place without pretending to monopolize the bio-legal debate. The really problematic question is that the reader would probably expect much more evidence and juridical reasoning to sustain such vigorous criticism. In this sense, legal argumentation should not be dangerously subordinated to or abandoned to mere “logic,” “decency” or “common sense” (compare, e.g., pp.89, 148). This is obvious, too, when examining the questionable use and content Foster gives to the principle of justice, the appellation usually made to beneficence, non-maleficence and justice or some inconsistencies present in his work.
Furthermore, sometimes the reader could have the feeling that the image of the principle of autonomy provided and criticised, is a deformation and exaggeration of the implications and possible meanings of the principle of autonomy in a democratic context characterized by the recognition and protection of fundamental rights and freedoms, as well as of other constitutional principles, goods and values. This intuition could be extended too to the alleged “tyranny” of the principle in the medico-legal debate and in the medical Law.
In the end, it could be argued that all the questions articulated in the book, which are many and problematic indeed, and which according to Foster are attributable to the “hegemony” of the principle of autonomy, are most of the time constitutional issues, where what it is at stake are constitutional rights, values and principles; fundamental rights, by the way, which can be conceived and interpreted in different ways. Some clearly diverge from the conception of autonomy portrayed by the book. Of course, in a democratic context, the solutions provided by the Law and its interpretation by the Courts are open to criticism, but one should never miss the point. In this context, the general impression is that Foster would probably feel more comfortable in a medico-legal context where heteronomous criteria had a more prominent voice, as it happened when “old fashion medical paternalism” ruled medical Law.
SUE AXON v THE SECRETARY OF STATE FOR HEALTH (The Family Planning Association: intervening)  EWCA 37 (Admin).
The Caesarean Section Cases:
ST. GEORGE’S HEALTH CARE NHS TRUST v. S  3 All ER 673.
Re MB  8 Med. LR 217.
ELH and PHB v UK  91 A-DR 61.
REEVES v. COMMISSIONER OF POLICE OF THE METROPOLIS  1 AC 360.
SIMMS v. SIMMS  1 Fam 83.
R. v. BROWN and OTHERS  2 All ER 75.
© Copyright 2009 by the author, Gonzalo Arruego.