The legal determinants of health (in)justice.

The mutual influences of social epidemiology and ideas of justice, each on the other, have been seminal in the development of public health ethics and law over the past two decades, and to the prominence that these fields give to health inequalities and the social-including commercial, political, and legal-determinants of health. General and political recognition of injustices in systematised health inequalities have further increased given the crushingly unequal impacts of the COVID-19 pandemic; including impacts of the legal and policy responses to it. However, despite apparent attention from successive UK governments to injustices concerning avoidable inequalities in health opportunities and outcomes, significant challenges impede the creation of health laws and policy that are both effective and ethically rigorous. This article critically explores these points. It addresses deficiencies in a UK health law landscape where health care contexts and medico-ethical assumptions predominate, to the great exclusion of broader social and governmental influences on health. The article explains how a public health framing better serves analysis, and engages with a framework of justice-oriented questions that must be asked if we are to understand the proper place and roles of law and regulation for the public's health.

Lord Sumption and the values of life, liberty and security: before and since the COVID-19 outbreak.

Lord Sumption, a former Justice of the Supreme Court, has been a prominent critic of coronavirus restrictions regulations in the UK. Since the start of the pandemic, he has consistently questioned both the policy aims and the regulatory methods of the Westminster government. He has also challenged rationales that hold that all lives are of equal value. In this paper, I explore and question Lord Sumption's views on morality, politics and law, querying the coherence of his broad philosophy and his arguments regarding coronavirus regulations with his judicial decision in the assisted-dying case of R (Nicklinson) v Ministry of Justice In Nicklinson, Lord Sumption argued for restrictions on liberty given the priority of the sanctity of life principle and the protection of others who may be vulnerable, as well as for deference to policy-making institutions in instances of values-based disagreement. The apparent inconsistencies in his positions, I argue, are not clearly reconcilable, and invite critical analysis of his impacts on health law and policy.

The two most important questions for ethical public health.

Public health ethics is a distinct and established field, and it is important that its approaches and rationales are understood widely in the public health community. Such understanding includes the capacity to identify and combine principled and practical concerns in public health. In this paper, we present a background to the ideas that motivate public health ethics as a field of research and practice, and rationalize these through a critical ethico-legal approach to analysis. Two essential points of inquiry are identified and formulated to allow philosophical and practical agendas regarding public health to be combined. These come through asking the theoretical question 'what makes health public?'; and the practical question 'how do we make health public?'. We argue that these two questions require to be addressed if we are to achieve a robust and rigorous, ethical public health.

Collateral Paternalism and Liberal Critiques of Public Health Policy: Diminishing Theoretical Demandingness and Accommodating the Devil in the Detail.

Critical literatures, and public discourses, on public health policies and practices often present fixated concerns with paternalism. In this paper, rather than focus on the question of whether and why intended instances of paternalistic policy might be justified, we look to the wider, real-world socio-political contexts against which normative evaluations of public health must take place. We explain how evaluative critiques of public health policy and practice must be sensitive to the nuance and complexity of policy contexts. This includes sensitivity to the 'imperfect' reach and application of policy, leading to collateral effects including collateral paternalism. We argue that theoretical critiques must temper their demandingness to real-world applicability, allowing for the detail of social and policy contexts, including harm reduction: apparent knock-down objections of paternalism cannot hold if they are limited to an abstract or artificially-isolated evaluation of the reach of a public health intervention.

An Aide Memoire for a Balancing Act? Critiquing The 'Balance Sheet' Approach to Best Interests Decision-Making.

The balance sheet is commonly used as a deliberative approach to decide best interests in Court of Protection cases in England and Wales, since Thorpe LJ in Re A (Male Sterilisation) described the balance sheet as a tool to enable judges and best interests decision-makers to quantify, compare, and calculate the different options at play. Recent judgments have critically reflected on the substance and practical function of the balance sheet approach, highlighting the practical stakes of its implicit conceptual assumptions and normative commitments. Using parallel debates in proportionality, we show that the balance sheet imports problematic assumptions of commensurability and aggregation, which can both overdetermine the outcome of best interests decisions and obfuscate the actual process of judicial deliberation. This means that the decision-making of judges and best interests assessors more generally could fail to properly reflect the nature of values at stake, as well as the skills of practical judgment needed to compare such values with sensitivity and nuance. The article argues that critical reflection of the balance sheet makes vital space for a more contextualised, substantive mode of deliberation which emphasises skills of qualitative evaluation towards enhancing conditions of articulation around the range of values involved in best interests decision-making.

Mental Capacity Law, Autonomy, and best Interests: An Argument for Conceptual and Practical Clarity in the Court of Protection.

This article examines medical decision-making, arguing that the law, properly understood, requires where possible that equal weight be given to the wishes, feelings, beliefs, and values of patients who have, and patients who are deemed to lack, decision-making capacity. It responds critically to dominant lines of reasoning that are advanced and applied in the Court of Protection, and suggests that for patient-centred practice to be achieved, we do not need to revise the law, but do need to ensure robust interpretation and application of the law. The argument is based on conceptual analysis of the law's framing of patients and medical decisions, and legal analysis of evolving and contemporary norms governing the best interests standard.

Elective ventilation for organ donation: law, policy and public ethics.

This paper examines questions concerning elective ventilation, contextualised within English law and policy. It presents the general debate with reference both to the Exeter Protocol on elective ventilation, and the considerable developments in legal principle since the time that that protocol was declared to be unlawful. I distinguish different aspects of what might be labelled elective ventilation policies under the following four headings: 'basic elective ventilation'; 'epistemically complex elective ventilation'; 'practically complex elective ventilation'; and 'epistemically and practically complex elective ventilation'. I give a legal analysis of each. In concluding remarks on their potential practical viability, I emphasise the importance not just of ascertaining the legal and ethical acceptability of these and other forms of elective ventilation, but also of assessing their professional and political acceptability. This importance relates both to the successful implementation of the individual practices, and to guarding against possible harmful effects in the wider efforts to increase the rates of posthumous organ donation.

Would responsible medical lawyers lose their patients?

This essay presents an analytic approach to understanding patients' responsibilities. Prompted by arguments in Margaret Brazier's article 'Do No Harm--Do Patients Have Responsibilities Too?', the paper demonstrates how medical lawyers can attempt to answer the questions Brazier raises, particularly regarding the translation of ethical responsibilities into legal ones. It suggests that the expansive nature of medical law as a discipline renders increasingly unhelpful the paradigm 'autonomous patients' found in a narrowly understood medical ethics. The great variety of contexts in which analysis takes place--some more, and some less 'medical'--implies a need in each case to presume that there might be radical variation in the responsibilities (legal and ethical) of different patients. It is therefore argued that instead of a one-size-fits-all paradigm of 'patients', always possessive of the same rights and freedoms, medical lawyers must be prepared to conduct analysis around more particular, nuanced concepts of the patient, and ultimately in a frame of legal and political rather than moral theory.

'Let them choose not to eat cake...': Public health ethics, effectiveness and equity in government obesity strategy.

With a focus on obesity strategy, this paper examines and explains questions of ethics and equity in public health policy. We identify and explain the dynamics at play in assigning individual and social/political responsibility for health, in the context of policies that rely heavily on the exercise of individual agency. The paper builds on an earlier scientific study by one of the authors, expanding the analysis through reference to public health ethics, and social ethics more broadly.

Tackling Root Causes Upstream of Unhealthy Urban Development (TRUUD): Protocol of a five-year prevention research consortium.

Poor quality urban environments substantially increase non-communicable disease. Responsibility for associated decision-making is dispersed across multiple agents and systems: fast growing urban authorities are the primary gatekeepers of new development and change in the UK, yet the driving forces are remote private sector interests supported by a political economy focused on short-termism and consumption-based growth. Economic valuation of externalities is widely thought to be fundamental, yet evidence on how to value and integrate it into urban development decision-making is limited, and it forms only a part of the decision-making landscape. Researchers must find new ways of integrating socio-environmental costs at numerous key leverage points across multiple complex systems. This mixed-methods study comprises of six highly integrated work packages. It aims to develop and test a multi-action intervention in two urban areas: one on large-scale mixed-use development, the other on major transport. The core intervention is the co-production with key stakeholders through interviews, workshops, and participatory action research, of three areas of evidence: economic valuations of changed health outcomes; community-led media on health inequalities; and routes to potential impact mapped through co-production with key decision-makers, advisors and the lay public. This will be achieved by: mapping system of actors and processes involved in each case study; developing, testing and refining the combined intervention; evaluating the extent to which policy and practice changes amongst our target users, and the likelihood of impact on non-communicable diseases (NCDs) downstream. The integration of such diverse disciplines and sectors presents multiple practical/operational issues. The programme is testing new approaches to research, notably with regards practitioner-researcher integration and transdisciplinary research co-leadership. Other critical risks relate to urban development timescales, uncertainties in upstream-downstream causality, and the demonstration of impact.

Assisted dying and the context of debate: 'medical law' versus 'end-of-life law'.

This paper provides a reflective analysis of the nature of normative critiques of law generally, and within medical law specifically. It first seeks to establish the context within which critical analysis of law and legal measures takes place, and develops an argument that critiques should focus on political norms. Entailed in this claim is the contention that positions that seek to address controversial social problems can not resort simply to moral philosophy. It then provides a brief account of political liberalism that can contain and expose normative constraints on questions of moral and social contention. The focus then moves to a more direct reflection on medico-legal analysis. Considering both medical law as a discipline, and the study of end-of-life issues, the argument highlights the range of relevant issues that must be accounted for, and addresses the question of whether these are well conceived as ones of medical law. It is argued that a political framing offers a good general analytic context, but that when working in legal sub-disciplines analysts risk allowing 'locally' pertinent norms to dominate or unduly constrain wider debate. Thus it is questioned whether 'medical law' provides a coherent frame for social questions related to assisted-dying.

Legal, Moral and Political Determinants within the Social Determinants of Health: Approaching Transdisciplinary Challenges through Intradisciplinary Reflection.

This article provides a critical analysis of 'the legal' in the legal determinants of health, with reference to the Lancet-O'Neill report on that topic. The analysis shows how law is framed as a fluid and porous concept, with legal measures and instruments being conceived as sociopolitical phenomena. I argue that the way that laws are grounded practically as part of a broader concept of politics and evaluated normatively for their instrumental value has important implications for the study of law itself. This, in turn, has implications for how we approach the transdisciplinary ambitions that form a key part of the report's recommendations to enhance law's capacity to promote better, more equitable population health at local, national, international and global levels.

Global Health with Justice: Controlling the Floodgates of the Upstream Determinants of Health through Evidence-Based Law.

This article introduces a special issue on the legal determinants of health, following the publication of the Lancet-O'Neill Institute of Georgetown University Commission's report on the subject. We contextualize legal determinants as a significant and vital aspect of the social determinants of health, explain the work of the Lancet-O'Neill Commission and outline where consequent research will usefully be directed. We also introduce the papers that follow in the special issue, which together set out in greater detail the work of the Commission and critically engage with different aspects of the report and the application of its findings and recommendations.