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Summary

Preface

This book is not aimed at one group in particular. Despite the fact that it considers the law, it is not designed to cater solely for lawyers any more than the fact that it considers the ethics should limit it to philosophers. Rather, we have attempted to make both the legal and ethical discussions as accessible to all disciplines as possible. That said, the ethical discussion will relate to the legal rules, and so provide something of an ethical commentary surrounding the law. This approach results in several consequences. First, we do not claim to consider each and every issue in detail within each legal topic. Rather, we concentrate on those with an ethical component and those that we feel are the most important. Moreover, we have tried to avoid legal minutiae, which we feel would have the effect of making the book less accessible to non-lawyers in particular. We do, however, provide suggested further reading for both law and ethics at the end of each chapter to direct readers towards more detailed consideration of the topics.

We have also tried not to use more cases than we need to – we want this book to be about issues rather than cases, and there are already several other textbooks available that provide a comprehensive account of case law, and we do not wish to merely repeat what they have done, particularly since they have done it very well. Nevertheless, we do of course cover the major cases. Again, the further reading suggested at the end of each chapter will direct readers who wish to look at more case law to sources where this is provided for.

Summary

Introduction

There are few topics that elicit quite so much debate as abortion. Ethical positions frequently depend on the individual’s views concerning when life begins, and for those who believe that life begins at conception, abortion is, quite simply, murder. For others, the most important aspect is a woman’s right to autonomy over her own body – for them, to legislate against abortion is to turn the woman into little more than a foetal container. Essentially, we have to accept that there is no hope of ever achieving consensus regarding abortion, since too many views depend on what Jonathan Glover terms ‘ultimate beliefs’ – a set of beliefs that cannot be defended through evidence, and instead simply reflect what a person’s instinct tells them about an issue. Thus, if we ask someone ‘why’ enough times when they answer a question, eventually they will reach the bottom of the barrel of their thinking, and they will respond: ‘just because’. This is the fundamental moral belief. We all have them, and they are irresolvable. This is why no agreement is possible on the question of, for example, when life does actually begin. The law via the Abortion Act 1967, as we shall see, reflects this and is designed as a compromise. However, equally predictable is the fact that it is a compromise that rather than making everyone happy, instead satisfies nobody.

Summary

Introduction

Although the utilisation of human organs and biological material of human origin has a long and colourful history, therapeutic interventions such as transplantations to replace a diseased organ have only become medical routine in the past sixty years. Modern uses of human biological material are varied and it is necessary to distinguish these uses if we are to understand the legal and ethical aspects properly. In this chapter, we will look at the use of whole human organs for the purposes of transplanting them to another human (organ transplantation); the use of human tissues for the purposes of transplanting them to another human (tissue transplantation); and the use of human biological material for non-therapeutic purposes, in particular tissue research.

The use of human tissues and organs for transplantation and other purposes has undeniably caused problems for the law, for several reasons. First, there has tended to be a shortage of organs available for transplantation (also see Chapter 6 on ‘Resource allocation and prioritisation’). This has meant that there are people who would benefit from transplants who have not been able to receive them due to the simple fact that there has not been a suitable organ. However, studies have consistently shown that there are far more people who would say that they would be willing to donate organs than there are people who actually donate them, which results in a frustrating situation where the organs and the desire to donate them are present in theory, but not in practice. Thus, the law has to balance the need for further organs (and encouraging people to donate them) with an equal need to protect the choices of those who do not wish to donate. On a related note, the law has to ensure that people who decide to donate are actually doing so because they want to, rather than because they feel compelled to. This coercion may take different forms, from a simple response to financial inducement (if someone needs the money she may consent for that reason rather than because she wants to) to believing that they have to consent given the help that they have already been offered by medical professionals (this would particularly be the case with patients in the NHS who are asked by their doctors whether they wish to donate organs).

Summary

For those who have dipped in to one or a few chapters of this book, we hope that we have managed to pique your interest to find out more, and indeed that you have gained some insight into the complexities of the legal and ethical rules that emerge in the areas of medical law covered by this book. For those who have read all of the chapters: we hope that this is the case for you too, but would like to add some final words regarding some of the themes in this book.

The first of the two strands that run through the book is the question of a balance of rights and interests. Medical law and ethics involves, inevitably, a relationship between doctor and patient. Sometimes their interests will conflict. Thus, in Chapter 3 regarding errors and fault, the law and ethics have to balance the right of the patient for compensation for harm with a duty not to unfairly punish doctors. Equally, we saw in Chapter 8 how the law can make certain exceptions in the case of abortion so that medical staff do not have to participate in procedures that are contrary to their moral and ethical views – although, quite rightly, this is subject to the health of the pregnant woman not being at risk. Other examples can be found in virtually all of the chapters, which is inevitable given that there will always be a relationship between the two parties where the behaviour of one will have consequences for the other. The law cannot help but try to be fair to both parties.

Summary

Introduction

Whatever the system of health care used, whether a comprehensive service free at the point of delivery such as in the United Kingdom, or an insurance-based system such as in the United States, resources are finite. Therefore, hard choices will need to be made regarding whether individual patients can be provided with everything that they need – and that is before we get to the question of providing them with everything that they might want. Indeed, we should acknowledge from the beginning that all systems practise resource allocation and do not simply fund everything. In the United States, many insurance policies are not totally comprehensive, so not all conditions are covered. Equally, there may be limitations, relating to cost for example, that mean that even for a condition that is covered, unlimited treatment is not available. However, as we shall see, such rationing also occurs in the United Kingdom. The NHS does not have a bottomless pit of cash, and it is simply not possible to fund absolutely everything – the service is comprehensive rather than limitless.

In this chapter we consider, first, how the law treats and reviews decisions made by medical professionals and those managing them in the NHS, before then turning to the ethical aspects of rationing. In the legal section, we begin by examining what the NHS Constitution itself has to say about the ‘right’ of patients to treatment, so that we can ascertain how the NHS sees its role. We continue by then looking at the role of the National Institute for Health and Clinical Excellence (NICE), and the way in which the court has treated challenges against its decisions, before assessing the approaches taken by the courts to cases challenging rationing decisions: a human rights approach, breach of statutory duty and judicial review.

Summary

Introduction

Although early modern natural philosophers were interested in the relationship between biological and psychological processes, psychology remained a branch of philosophy or theology. Then nineteenth-century physiologists demonstrated experimentally that neuromuscular functions, perceptual processes, and mental operations were interdependent, a consistent finding that created space for a natural-science psychology. Some German scholars, then British, French, US, and Russian scientists began to adopt physiologists’ methodology to analyze conscious experience of sensory-motor functions and answer such philosophical questions as:

Summary

Introduction

In this, the second chapter on human-science Psychology, we trace its origins to the interpretive discipline known as hermeneutics. Then we describe the multiple facets of human-science Psychology as expressed in phenomenological, existentialist, humanistic, and transpersonal psychologies. Although these alternatives to natural-science Psychology initially emerged in continental Europe, they have proved influential elsewhere, including in Anglo-American nations.

The aims of this chapter are to describe:

Summary

Introduction

Alongside developments in natural-science Psychology there emerged a rather different trend in psychological thought and practice known as psychoanalysis. Nineteenth-century philosophy, medicine, and physiology formed the context in which Sigmund Freud developed a theory of unconscious psychological dynamics. Many previous thinkers promoted the idea of unconscious psychic processes, but Freud creatively integrated these ideas into a complex theoretical system. Although he intended it as a natural science, with various practitioners understanding and interpreting it, psychoanalysis evolved into a human science of subjectivity. Many natural-science psychologists have been dismissive of much of psychoanalysis, but some claim that its diverse theories continue to have an enduring influence on psychological thought.

In this chapter, we begin by considering pre-psychoanalytic constructions of unconscious phenomena, emphasizing how Freud was not the first to theorize unconscious processes. Then we review the social, cultural, and political context of Freud’s life to situate the emergence of his ideas. Next you will encounter different threads of psychoanalytic thought and a range of key thinkers. We consider the analytical psychology of Carl Jung, followed by analysts who stressed the sociopolitical, the ego, object relations, postmodern thinking, and gender. Lastly, we examine how psychoanalysis has been received and uniquely developed in different cultural contexts and discuss the possibilities for psychoanalysis in scientific and professional Psychology.

Summary

Introduction

This chapter encompasses psychological thought during the “early modern” period of the seventeenth and eighteenth centuries, known as the Scientific Revolution and the Enlightenment respectively. These developments partially laid the foundation for Psychology. However, early modern scholars were not interested in psychological questions as currently understood. Rather, their beliefs that mind was not material and humans were more than physical objects challenge current psychological assumptions. Furthermore, early modern scholars encountered a rather different cultural context than ours. Accordingly, some historiographical cautions are in order:

Summary

In the modern revival of interest in Ovid's exilic poetry, the Tristia have long received the most attention, although his last elegies, the Epistulae ex Ponto, reward the reader no less and are arguably more appealing – works in which his inventiveness flourishes no less than before, and in which his imaginative self-fashioning is as ingenious and engaging, though now in a minor key, as it always was from the time of his Amores. Their comparative neglect resulted partly from a dearth of commentaries. Whereas Luck's commentary on the Tristia (1967, 1977) long made that collection more accessible, the reader of the Epistulae ex Ponto had until recently little beyond Keene (1887) in English and Scholte (1933) in Latin on book 1, both difficult to obtain. Now, however, Ovid's readers can look forward to the completion of M. Helzle's German commentary on all four books, of which the first volume, on books 1–2, appeared in 2003; his commentary on selected elegies of book 4 (1989) is in English. On book 2 we have Pérez Vega (1985) in Spanish and Galasso (1995) in Italian. In 2005 appeared J. F. Gaertner's commentary in English on book 1, a valuable work, whose vast scale perhaps diminishes its accessibility to some readers. I am greatly indebted to these predecessors, especially Helzle and Gaertner, in the writing of the present commentary, which, consistent with the aims of this series, is meant to assist students as well as interest scholars.

I began this work in idyllic circumstances as Blegen Fellow in the Department of Classics at Vassar College. I am deeply grateful for support also from the University Research Committee of my own institution, Emory University, and from Emory's Fox Center for Humanistic Inquiry, which provided a year's leave, enabling me to complete the project. It is a pleasure to thank my colleagues at Emory for their encouragement and support. My greatest debt is to my editor, Professor E. J. Kenney, who promptly scrutinized each portion of the commentary as it was written, offering invaluable advice, recommending improvements, and rescuing me from many errors. His vast learning in Latin literature and especially in Ovid, generously shared with so many over many decades, remains a source of inspiration and encouragement for all who pursue these studies.

Summary

Introduction

In Chapter 1 we discussed diverse meanings of “history,” “psychology,” and “science,” and we explained our critical-historical orientation to the history and philosophy of psychology. Now we can begin the first stage of our historical journey and consider how psychological questions were addressed in ancient, medieval, and Renaissance thought. New scholarship in these areas has generated controversy and new insights especially regarding interpretations of ancient thought (Rossetti, 2004). By addressing this research we clear up some long-standing misinterpretations, however, for the most part we present conventional ideas on the history of philosophy relevant to psychological inquiry.

We start with the ancient Greek philosophers: abstract descriptions of nature introduced by the presocratics, the Socratic method of inquiry, the psychological views of Plato, along with a differing orientation espoused by the Sophists. Then we discuss the psychological ideas of Aristotle. Next we consider developments in science and philosophical psychology during the Roman Empire. We discuss the practical views of therapeutic philosophies and religious reinterpretations of Plato in late antiquity important to medieval ways of thinking. Concerning the Middle Ages, we describe the influential ideas of Augustine and Aquinas on psychological subjects. Regarding the Renaissance, we note the cultural, scientific, and philosophical developments from which a modern scientific and a more intensely psychological focus began to emerge in the seventeenth century. That stage of our journey continues in Chapter 3.

Summary

Introduction

In this closing chapter we synthesize our account of Psychology’s history and philosophy by presenting multiple critical frameworks for appreciating the past, present, and anticipated future of the discipline. The central theme is that many individuals and groups have described Psychology throughout its history as a problematic science due to its disputed concepts, methodology, and practices, yet they also proposed alternative approaches. We trace these critiques back to Immanuel Kant, Auguste Comte, and nineteenth-century German scholars Friedrich Lange and Rudolf Willy (1855–1918).

Turning to the twentieth century, we review developments in physics, biology, and fuzzy logic, which have implications for Psychology’s scientific and epistemological foundations. Then we describe critiques by social philosophers, Herbert Marcuse and Jürgen Habermas, known as critical theorists, and discuss modern critical approaches in Psychology, including the work of Klaus Holzkamp and current critical psychology.

Next we review more recent critiques of mainstream Psychology from feminist and postmodern perspectives. Then we trace the inclination to critique Psychology to advocates of postcolonial perspectives who assert that psychologists have tended to ignore the discipline’s cultural embeddedness and who propose respect for culturally diverse psychologies. We conclude our review of critiques with a philosophical analysis of the ontology, epistemology, and ethics of Psychology.

Summary

Introduction

After the Scientific Revolution natural science came to overshadow religious knowledge about nature and human nature. Many natural philosophers became disenchanted with divine and mysterious explanations. They regarded nature as mechanistic, manipulable for human ends, even conquerable. Emergent empirical methods and quantification techniques enhanced scientists’ confidence about their work.

Societally, economically privileged Western nations became increasingly rationalized and bureaucratic. Efficient administration of industry, commerce, and government depended on applications of systematic knowledge; consequently, social management of individuals escalated. In addition, cultivating individual experience became culturally desirable.

This scientific and societal context was early psychologists’ legacy. Their new science blended the study of individuals with practical applications for managing them. To legitimize Psychology, natural-science psychologists adopted the methodology of the natural sciences. They assumed that rigorous application of empirical methods and precise and reliable measurement would reveal socially useful truths.

Empirical methods, then, typically supported by quantification, have been the basis for natural-science psychologists’ claims to scientific knowledge. However, it seems that, rather than being purely objective and universal, these claims depend on modes of conducting research and writing about it that have a social history. In short, societal and scientific contexts guided Psychology’s research traditions.

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Preface

Summary

8 - Abortion, neonaticide and infanticide

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Index

9 - Organ transplantation and the use of human tissue

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12 - Concluding remarks

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6 - Resource allocation and prioritisation

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Contents

5 - Early natural-science Psychology

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Frontmatter

10 - Human-science psychologies: hermeneutic to transpersonal

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9 - Human-science psychologies: psychoanalysis

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Glossary

List of figures

List of tables

Acknowledgments

3 - Early modern psychological thought

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Preface

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2 - Ancient and premodern psychological thought

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12 - Critical philosophical and historical reflections

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11 - Constructing psychological research

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