Medical Law in the Shadow of Hippocrates
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02615.x |
| Date | 01 July 1989 |
| Author | Jonathan Montgomery |
| Published date | 01 July 1989 |
REVIEW
ARTICLE
MEDICAL LAW IN THE SHADOW
OF
HIPPOCRATES
DOIXORS
AND
RULES: A SOCIOLOGY
OF
PROFESSIONAL
VALUES.
By
JOSEPH
M.
JACOB
[London and New York: Routledge,
1988,
xii
and 250pp.
f30
hb.]
MEDICAL law is now developing a substantial corpus
of
literature.
Joseph Jacob’s book
Doctors
and
Rules
is a refreshingaddition to the
library.’ Although in parts idiosyncratic, it presents a fundamental
challenge to the tools used by legal commentators to analyse the rela-
tionship between law and medical practice. The dominant approach
has been based on a rationalist consumerism. The work of the Centre
of
Medical Law and Ethics at King’s College, London, perhaps best
illustrates this (now almost “orthodox”) position.2 Medical jurispru-
dence there sees its primary task as unravelling controversial prob-
lems, seen essentially as issues
of
applied moral philosophy. This
focus has given the whole enterprise a misleading slant. By dealing
with the controversial rather than the commonplace academic com-
mentary has invited its own marginalisation; doctors can argue that it
is mostly irrelevant,
so
too can practising lawyers who have treated
medical accident litigation as just another form of personal injury
work. Non-medical health professionals could justly claim that their
concerns have been largely disregarded. The only area of ordinary
practice which has received extended treatment is con~ent,~ but that
forms only a tiny percentage of litigated cases and has failed to pro-
duce much by way
of
guidance to the health professions. Jacob ele-
vates this failure to comprehend mainstream practice to a point
of
principle: “the law has no substantial place in regulating medicine
because although some rules establish structures, the law’s prime
concern is with the untoward.” (p.
166).
If
the subject matter of juristic discussions
of
health care practice
has encouraged the professions’ disdain,
so
too has much of the
method. Few commentators have tried
to
understand the concrete
situations in which health care is delivered. Yet without such an
appreciation, criticism seems uninformed, abstract and superficial. It
Unattributed page references in the text are
to
this volume.
See the three volumes of essays,
Rights and
Wrongs
in
Medicine
(London 1986),
Medicine
in
Contemporary Sociery
(London 1987) and
Health, Rights and Resources
(London 1988) all edited by P. Byrne.
See,
e.g.
I.
M. Kennedy “The Patient on the Clapham Omnibus” (1984) 47
M.L.R. 454, revised and expanded in
Treat Me Right
(Oxford 1988); M. Brazier
“Patient autonomy and consent to treatment: the role
of
law?” (1987)
7
Legal Studies
169;
S.
Lee
“Towards a Jurisprudence
of
Consent” in
J.
M.
Eekelaar and J. Bell (ed.)
Oxford Essays
in
Jurisprudence
(3rd series) (Oxford 1988);
0.
Robertson :‘Informed
Consent
to
Medical Treatment” (1981) 97 L.Q.R. 102;
H.
Teff
“Consent
to
Medical
Procedures: .Paternalism, Self-determination
or
Therapeutic Alliance” (1985)
101
L.Q.R. 432.
566
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