In the second of two companion pieces mapping out the new network Shifting Dynamics in Medical Law, co-organisers Bev Clough and Anna Nelson discuss the need for and future directions of the network across intra- and interdisciplinary conversations.
The presentations and conversations during the Shifting Dynamics Workshop discussed in our previous post were incredibly generative, and raised a wide range of themes, questions and topics which we believe to be both valuable to medico-legal disciplinary thinking and worthy of further reflection in conversation with interdisciplinary interlocutors.
Key Concepts and Categories
One of the questions posed early on in the discussion was about what we want our concepts and categories to do, drawing important attention to the material effects of the key concepts and medico-legal or ethical norms that buttress the discipline. This not only has relevance to the ways in which we teach or research medical law, but also necessitates reflection in adjacent disciplines, including the medical humanities and medical sociology, as to the lived and material realities of medicine and health. It requires an approach to law that recognises its role beyond doctrine or judgments, as well as recognition of how law itself is recursively shaped by broader historical, societal, cultural, and political contexts.
1. Consent
Addressing consent in particular – an organising principle in medical law – workshop participants invited reflection on how this concept is being used at present as a tool to maintain existing power structures. Whilst consent was seen in most of the workshop papers, the participants each drew attention to the spatial and temporal impacts of consent and the ways that choice and consent can be utilised to shift responsibility away from institutions and onto individuals, and to obscure the underpinning power relations. The different spaces and temporalities of consent, for example, came through the discussions of digital health apps and infrastructures (Sekalala) and the multiple bureaucracies and logics of these; through the discussion of home birth and pre-emptive, abstract ‘consent’ to interventions (Nelson and Clough); and through the analysis of decision-making and capacity in constraining institutional contexts (Abbott and Avlonitis; Reed-Berendt). The temporal nature and boundaries of consent was also prominent across many of the papers, and the implications of this for jurisprudence (that is the philosophy/theory of law) – particularly in the context of pregnancy (Fletcher), childhood (Garland and Travis; Mahmoud) and at the end of life (Redhead). Notions of crisis and emergency were raised as central to problematic erasures of choice or consent. The interaction between space and consent/decision-making was prominent in Caroline Redhead’s paper, which opened up reflection on spatially contingent enactments of legal frameworks, with the hospice setting providing a more supportive context for patient autonomy. Further, participants also discussed the generative potential of playing, explicitly, with ideas of scale across the three broad workshop strands (space, time, actors). Another interesting point for further exploration was the potential value of ambiguity, and the scope for use and misuse of this in different arenas.
2. Movement
The issue of movement was also a prominent theme: not only the movement of actors, but also of knowledges, across both time and space. Prompted by Dr Priyasha Saksena, Dr Amrita Limbu and Prof Marie-Andrée Jacob’s talk, participants posed the question: how does law facilitate or constrain these movements? Prof Sharifah Sekalala reflected that the increasing digitisation and datafication of health services in South Africa (though with resonance beyond its borders) gives an impression of spacelessness, importing the idea that post/colonialism does not exist in the (digital) healthcare arena, and this can work to erase the histories of place. Movement and shifting over and through time, of ruptures and breaks from the past, came through these discussions, and the ways these can be co-opted as framing devices to obscure power dynamics. Further careful attention is needed to the implications thereof, and the means to resist such narratives through legal research and education. Moreover, a prominent theme in reflecting on these power dynamics was the boundaries of medical knowledges, and how these boundaries are sustained and maintained through law (Cloatre; Urquiza). As part of the network, we hope to further explore this theme through engaging with different epistemologies (feminist, queer, crip, critical race, disability) and critical approaches which further disrupt and redraw boundaries of medical knowledge, and the potential effects of doing so in, through or with medical law (however defined).
Continuing the Conversation – An Interdisciplinary Network
Participants shared our desire to further explore the dynamic boundaries of medical law both through their research and teaching activities, and in conversation with other disciplines. Recognising the benefit of collaboration in facilitating this, we have set up a network to drive this project forward. Our first step has been to set up a mailing list, which we envisage to be a space to share published papers, books, events, calls for papers, panel proposals for conferences and so on.
1. Interdisciplinary Dialogue
The ongoing dialogue about the dynamic nature of medical law is, we believe, necessarily an interdisciplinary one. For example, Medical Humanities has much to contribute to this project – providing a critical avenue through which to interrogate traditional organising ideas in medical law. Medical Humanities invites a more nuanced engagement with “the deep entanglement of social, cultural, historical, spiritual life with the biomedical” (McNaughton 2023, 546), prompting broader legal engagement with places and contexts within which medicine operates and the impact thereof. This may, for example, provide key tools for resisting digitisation’s erasure of post/colonial realities. History, too, has much to offer – providing invaluable insight into how today’s medico-legal norms, structures and organising concepts were constructed and formalised, and the normative values which they were designed to uphold. Further, the concept of sociotechnical imaginaries – that is “collectively imagined forms of social life and social order reflected in the design and fulfilment of nation-specific and/or technological projects” (Jasanoff and Kim, 2009: 120), drawn from Science and Technology Studies, may provide a useful analytic tool which can generate new insights into how “existing sociotechnical regime[s]”, and the law and regulation which uphold them, came to be (Hess and Sovacool, 2020: 7). The geographical insights that shaped the spatial dimensions of the papers, including the emergent focus on scale, generate significant scope for further engagement, particularly with the field of legal geography/critical legal geography. This list is illustrative rather than exhaustive: there are myriad disciplines which can contribute tools and insights which help expose and explore the dynamic relation between space, time, and different actors in the medico-legal context.
2. Methods
We also reflected on the importance of methods in pushing for greater recognition of spatial, temporal and agential dynamics in medical law and are particularly keen to explore how methodological innovation can shed new light on topics of concern for medical law. The value of this was illustrated by Zaina Mahmoud’s paper on the Children’s Voices in Surrogacy Law project (Wade, Horsey and Mahmoud, 2023) at the launch workshop described in our previous post. During the presentation, Zaina played us a video documenting the artwork that child participants in their focus groups had created in response to the theme ‘what surrogacy means to me’. Across the papers, we reflected on the value of methods such as ethnography, documentary analysis, object analysis, and video recordings alongside legal (doctrinal, jurisprudential, socio-legal) analysis for starting to unpack and understand the dynamics at play. It is in this regard that we hope to develop the network alongside scholars from other disciplines in order to explore novel methodological approaches. We are particularly keen to catalyse (inclusive) collective interventions where anyone interested can come together to open up perceptions of what medical law is and can be.
This strengthens further our commitment to bringing together interdisciplinary perspectives – law has much to learn from other disciplines when it comes to understanding new methodological approaches and their potential. Creating a community in this regard is important too; with new approaches come new challenges, and our aim is that network members will draw upon their own experience to support others.
We therefore encourage scholars from across disciplines to join the mailing list and engage with the network. During the workshop, participants expressed a concern that law is often perceived – and indeed, in some spaces, may present itself – as a closed discipline. A central commitment of the network is to actively resist ‘closedness’, instead opening up the conversation to allow legal scholarship to benefit from other disciplinary insights (and hopefully, to benefit those disciplines in turn).
References
Jane McNaughton, “Does medical humanities matter? The challenge of COVID-19,” Journal of Medical Humanities 49 (2023): 545-552.
Sheila Jasanoff & Sang-Hyan Kim, “Containing the atom: Sociotechnical imaginaries and nuclear power in the United States and South Korea,” Minerva 47 (2009): 119-146.
David J. Hess & Benjamin Sovacool, “Sociotechnical matters: Reviewing and integrating science and technology studies with energy social science,” Energy Research and Social Science 65 (2020): 1-17.
Katherine Wade, Kirsty Horsey and Zaina Mahmoud, Children’s Voices in Surrogacy Law: Phase One Preliminary Report (2023)
Katherine Wade, Kirsty Horsey and Zaina Mahmoud, Children’s Voices in Surrogacy Law: Phase Two Preliminary Report (2023)
About the Authors
Bev Clough (she/her) 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.
