Law and the demoralisation of medicine

Montgomery, Jonathan (2006) Law and the demoralisation of medicine. Legal Studies, 26 (2), 185-210. (doi:10.1111/j.1748-121X.2006.00004.x).

Abstract

In his Dimbleby Lecture in December 2002, the Archbishop of Canterbury examined the effect of the emergence of the market state on the legitimacy of government activity in areas of morality. He suggested that, while this is becoming limited, the continuing need to provide a moral context for social life provided an opportunity for religious communities to play a crucial role. This paper suggests that the increasing significance of market concepts in healthcare law poses a similar challenge to the moral basis of medical practice, threatening to drive moral argument outside the scope of the discipline, with the consequent effect of undermining the values that drive good healthcare. Thus, the de-moralisation of medicine is also demoralising for those within the health professions. To counteract this tendency, a strong sense of a common moral community needs to be maintained amongst those engaged with the discipline of healthcare law. This paper also examines the role of law in this area. Traditionally, legal scholars have attacked the reluctance of legislators and the judiciary to wrestle from the grip of doctors the authority to determine ethical issues. The dominant view has been that this was a failure to recognise the fact that society has a stake in these matters and that legal non-intervention was an abdication of responsibility that undermines the rule of law. However, the integration of medical and moral decision making into a collaborative enterprise can also be seen as a more effective defence against the forces of demoralisation than the separation that the orthodox approach implies. If this is correct, then a key task for healthcare lawyers, as yet undeveloped, is to consider how to establish a legitimate common moral community, and what role the law might have to play in that process.

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