In the first of two companion pieces mapping out the new network Shifting Dynamics in Medical Law, co-organisers Bev Clough and Anna Nelson report from and reflect on the network’s catalysing workshop funded by the Society of Legal Scholars, held in June 2024.
On the 19th of June 2024 we hosted a workshop at Manchester Metropolitan University entitled ‘Shifting Dynamics in Medical Law: New Spaces, Temporalities and Actors’, which was generously funded by the Society for Legal Scholars (SLS). Our aim was to facilitate more explicit engagement with the dynamic relation between space, time, and agents or actors in medical law.
As a discipline, there has been a shift in focus away from medical law and towards health law (Montgomery, 1996) as a way to capture the broader contexts of health and regulation and bring into focus aspects beyond the doctor-patient relationship or the clinic and to “draw attention to neglected perspectives” (Brazier and Montgomery 2019: 29). Despite this, many of the core concepts and preoccupations of medical law – such as autonomy, consent, harm, and redress – have simply travelled across to health law scholarship. Moreover, traditional medico-legal scholarship has focussed more discretely on the text of the law and its judicial application, or interactions between medical law and ethics. In practice, however, the law is refracted through the realities of those upon and through whom it acts, and through places, times and social, cultural, political and economic contexts. In this sense, medical law as a discipline is deeply connected with the “human condition” (Brazier, 2022). For further discussion of the points of tension and synergy between medical and health law, see: Special Issue: ‘Reimagining Health Law’ Journal of Medical Law and Ethics 2019. The discipline is thus a rich space in which to explore the significance of meaningful engagement with spatial, temporal and agential dynamics and, crucially, the ways in which foregrounding these can shift or unsettle core concepts.
Being attentive to the different pockets of work happening across the discipline (and beyond) in this regard, we sought to bring people together to explore how these dimensions shape and interact with each other, and what this means for medical law as a discipline, including the foundational frameworks and concepts upon which it is premised. In doing so, we sought to emphasise medical law as a “lived” rather than merely technical discipline (Cloatre 2018, 101) and invite further exploration of the way this is experienced across different contexts.
The Workshop
The day was organised around three panels, on space, actors, and temporality, each of which was followed by a discussion pulling out common themes, points of connection and areas for further reflection.
Panel 1: Space
Through her paper ‘Post Colonial Spaces, Infrastructures and Digital Health Regulation’ Prof Sharifah Sekalala (Warwick) drew attention to the Discovery Vitality App in South Africa which acts both as a means of medical insurance, and a way to incentivise healthier behaviours. This opens critical space in which to critique medical law and infrastructures in post-colonial spaces. Next Ruby Reed-Berendt (Edinburgh) discussed ‘Capacity, enforced caesareans, and institutional interfaces: an intersectional analysis of North Bristol NHS Trust v R’, highlighting the importance of attentiveness to the institutional spaces within which individuals subject to the Mental Capacity Act 2005 are situated. In the North Bristol Case, for example, Ruby highlighted the significance of the prison space as well as the asylum and homelessness histories which shape R’s experience yet seem absent in the judgment. In a similar vein, drawing attention to the prison space, Prof Laura Abbott and Dr Natalie Avlonitis (Herts) presented ‘Understanding the lived experience of mandatory separation of new-born babies from mothers in prison – The Lost Mothers Project’. They highlighted how women who are mandatorily separated from their babies within prison settings experience health and care inequalities compounded by incarceration and social care intervention, and outlined that professionals working in these spaces lack training as to these harms. We (Prof Bev Clough and Dr Anna Nelson) then spoke about ‘Home and the Spatio-Legal Dynamics of Birth’, drawing attention to the need to take ‘home’ seriously, recognising that this is not a mere background space, nor a neutral container within which birth takes place but rather that the spatial dimension of the birth encounter plays an active role in the shaping the dynamics thereof.
Panel 2: Temporality
Dr Ruth Fletcher (QMUL) introduced ‘Calendaring as a legal technique of timely social reproduction’, reflecting on the significance of struggle over time-limited law on the abortion trail. The ‘abortion trails’ concept acknowledges the journeys involved in the pursuit of access to abortion, not only with regards to the “mobility of bodies” but also the “social practices that make this possible” (Calkin & Freeman 2019: 1327). Ruth invited us to think about how law calendars shape moments of reproductive time into different pathways to abortion care and allow us to understand the conventional legal grounds for abortion, time-limited autonomy, risk to health, foetal anomaly, necessity, as different modes of timely social reproduction. Dr Fae Garland (Manchester) and Dr Mitch Travis (Leeds) then discussed their paper on ‘Gendered Childhoods, Linear Sex Development and Unruly Temporalities’ which considered Bell v Tavistock through a temporal lens, noting the High Court decision which promulgated a conservative account of sex and gender within childhood, consistent with the Court’s own heteronormative construction of sex development. Through her paper, ‘Total pain and limited time: clinical ethics and the relationality of hospice care’ Dr Caroline Redhead (Manchester) reflected on the intersections of hospice care and clinical ethics within the temporal dynamic of terminal illness. This temporal lens highlighted the distinct ways that hospice care can facilitate use of the Mental Capacity Act in patient-centred ways. Dr Nayeli Urquiza (Lancaster) presented ‘Saving the nation: Emergency, securitization and the remaking of Mexico’s pharmaceutical futures’ which considered how, under the temporal logic of emergency, the current administration in Mexico has expanded the role of the military in government functions, including the purchasing and distribution of medications. Through this, Nayeli notes that the socio-technical imaginaries enacted through the healthcare law reforms have become militaristic in character.
Panel 3: Actors
We heard about the ‘‘Children’s Voices in Surrogacy Law’ (Wade, Horsey and Mahmoud) project from Dr Zaina Mahmoud (Liverpool) which centres children and their perspectives on the law by capturing their views during childhood itself, as opposed to exploring adults’ reflections on their experiences as children. The importance of utilising participatory methods to explore a range of individuals’ experiences of health and law was reinforced. Prof Emilie Cloatre’s (Kent) paper ‘Exploring the Legal Boundaries of Healing’ considered the ways that legalities shape healing practices which sit on the edge of medical law and biomedicine. Here, Emilie reflected on the increasing range of actors – including social media influences, diet-coaches and life coaches – who push the boundaries of who may or may not be the kind of health actor the legal system should be concerned with. Rebecca Brione (KCL) then introduced her work on ‘Silenced speakers: interpreter-mediated healthcare and the law’, highlighting the multiple dynamics in instances of interpreter-mediated healthcare, and what they mean for the law. In doing do, Rebecca sought to provide a means to understand multiple ways in which birthing people, health carers and interpreters themselves may be wronged within the healthcare system in the absence, and despite the presence, of interpretation. Dr Priyasha Saksena, Dr Amrita Limbu and Prof Marie-Andrée Jacob (Leeds) then presented their ongoing work on ‘The Migrant Healthcare Worker: Documenting Professional Expertise in the UK’, looking at the ways that migrant health workers make it onto the professional registers. They note that the documentation requirements position migrant health workers within problematic binary framings of competitor/supplement, ally/enemy, and expert/risk.
The Interwoven Nature of Spaces, Temporalities and Actors
Though the papers were divided into three separate panels, something which really stood out to us was how impossible it was to disentangle these issues which were interwoven across the papers. In writing our own paper for the event, it became clear that unpacking the spatio-legal dynamics of home necessarily required consideration of temporal dynamics and of dynamics associated with the actors who are present and involved in birth in that space. For example, our research on homebirth illustrates that the agents of birth also help to constitute spaces of birth, and imposing, maintaining or disrupting the boundaries thereof. Midwives, or other birth workers such as doulas, are often positioned as the (literal) gatekeepers or “guardians” of the birth space (Andren et al 2021: 9). Similarly, in Caroline Redhead’s reflections on hospice care and total pain, it was clear that the space of care and the temporal logics operating through and shaping this care were closely bound together, underscoring the power of the hospice to break the temporal link between dying and crisis / emergency.
Visual Scribe
We asked Amber Anderson, a visual scribe, to capture the presentations and discussions which occurred on the day. Scribing “offers a broad variety of ways to convey meaning and importance” for example, through the “choice of specific text words embedded in the drawings” (Alvarado, Batra & Bird 2024: 3) and for a workshop like this it can provide an incredibly valuable tool for identifying core themes and points of connection within discussions. The outputs from this will provide not only a visual record of the discussions on the day but will be the catalyst for further development in future activities.
Conclusion
This event was rich and fruitful, and the discussion on the day confirmed to us that these conversations which seek more explicit engagement with the dynamic relation between space, time, and different actors in medical law are worth having. To that end, the workshop acted as a catalyst to set up an ongoing network – which we will discuss in more detail in our second post.
We would like to thank all of the workshop contributors and attendees for their generous insights both in their papers and in the discussions that flowed from them: Laura Abbott, Catherine Bowden, Rebecca Brione, Emilie Cloatre, Ruth Fletcher, Fae Garland, Aimee Hulme, Marie-Andree Jacob, Amrita Limbu, Zaina Mahmoud, Caroline Redhead, Ruby Reed-Berendt, Priyasha Saksena, Sharifah Sekalala, Mitchell Travis, and Nayeli Urquiza.
References
Anna Andren et al, “The birthing room and its influence on the promotion of a normal physiological childbirth – a qualitative interview study with midwives in Sweden” International Journal of Qualitative Studies on Health and Well-being 6 (2021): 1-13.
Gabriela Alvarado, Priya Batra, and Chloe E. Bird, “Visual Scribing: A Qualitative Research Tool in a Community Engagement Project for Birth Equity,” International Journal of Qualitative Methods 23 (2024): 1-15.
Jonathan Montgomery, Health Care Law (Oxford University Press, 1996).
Katherine Wade, Kirsty Horsey and Zaina Mahmoud, Children’s Voices in Surrogacy Law: Phase One Preliminary Report (2023)
Margot Brazier and Jonathan Montgomery, “Whence and whither ‘Modern Medical Law’?” Northern Ireland Law Quarterly 70 (2019): 5-30
Sydney Calkin & Cordelia Freeman, ‘Trails and technology: social and cultural geographies of abortion access’ Social & Cultural Geography 20 (2019): 1325-1332
About the Authors
Bev Clough is a Professor of Law & Social Justice at Manchester Law School, MMU. Her work explores the intersections of critical disability studies, feminist legal theory, and legal geographies in health and social care contexts. She is the book reviews editor at Medical Law Review and sits on the executive committee for the International Journal of Disability & Social Justice.
Anna Nelson (she/her) is a socio-legal researcher, with a primary research focus on the way that (gendered) socio-medical realities shape experiences of consent and care during labour and childbirth. She has a PhD in Bioethics and Medical Jurisprudence from the University of Manchester, and has worked as a Research Associate on a wide range of projects, most recently the ‘FemTech surveillance: Gendered digital harms and regulatory approaches’ project at the University of Sheffield.
