In the 21st century, commerce and media impact health decisions, particularly in relation to weight reduction diets, drugs and surgeries. When patients attend a consultation in relation to their weight, they rely on the physician or surgeon to be professional – competent, up-to-date, and ethically motivated. But this is a complex environment in which medical decisions are made. Patients require more than reliance on the professional ethos of medicine: Regulatory requirements, formal consent processes and codes of ethics may assist in bringing about a safer practice environment
acceptance of risky interventions. Even the training aspects17 of, and individual reactions to, new interventions, have their own history of considerable risk.
In following sections, I trace the emergence of certain protections in law and codes of professional practice developed to cover the inevitable downsides of research on, and new interventions with, citizen/patients. I reflect on the significance of the inquiry into care for cervical cancer patients at National Women’s Hospital in Auckland, New Zealand, (Cartwright, 1993; Coney, 1988; 2003) for the development of codes of practice for New Zealand doctors and the protection of New Zealand citizen/patients.
2.5.1 The science of law and the science of medicine. In New Zealand, a Public Health Amendment Bill (Ministry of Health, 2007) was proposed that included the potential for a Director-General of Health to issue codes of practice in regards to causes of non-communicable disease such as diabetes and then to regulate if the code did not appear to be achieving its goals. In describing public risk trumping individual freedoms (Bailey, 2008), this proposed Act was described as ushering in “the supermarket strategy” (Bailey, B3) of government. For example, certain food items could be deemed sufficiently risky for control by ministerial decree. While the modern citizen/patient retains its neo-liberalist definition as one with agency over their life and health, governmental surveillance and the threat of legal intervention run alongside, all the while proclaiming the hegemony of the individual citizen as agent. It raises the spectre that the very availability of WLS surgery for patients within the New Zealand public hospital system may lead to the requirement for specified patients to undergo these procedures. Failure to comply may risk denial of access to a range of health or other public goods. New technologies such as WLS create new enactments of moral responsibilities. As Ettorre (2002, p.83) wrote of reproductive genetics, “In the feminised regimen of reproductive genetics, women enact a morality of the body which upholds the external population’s standard.”
A range of legal apparati provide a regulatory framework within which modern medicine retains the power to contain (as in compulsory care orders for psychiatric patients), to restrain, or to treat. A conference in 2006, entitled Obesity: Should there be a law against it, explored possibilities for regulation to intervene in the obesity of individuals and the obesogenic environment (Magnusson, 2008c). In the acceptance of the epidemic nature of obesity, public health law emerges as a tool to manage lifestyle
17The problems of learning new procedures and applying WLS procedures after very short
(Gostin, 2007) and to intervene in disease prevention (Magnusson, 2008a; 2008b; 2008c). Gostin’s model delineates eight areas for possible legal interventions. These include: tort liabilities; taxing and expenditure on health, including forms of surveillance; mediated information campaigns; designing and altering the built environment; and, responding to health inequalities by legislating to ameliorate socio- economic disparities.
In a societal commitment to medicine-as-science, experimental and radical treatments have been progressively normalised. From the study of cadavers to the study of living bodies, medical objects have been surrounded by scientific rules to determine their correct perception (Foucault, 1975; 1988). The call for medical treatments to be available for all French citizens was made in the wake of the French Revolution in a move to democratise medical treatment. This move was accompanied by the rather less well-known corollary that citizens would make their bodies freely available for experimentation in life and dissection after death (Weiner & Sauter, 2003). This early influence from Paris in relation to accessible bodies for anatomo-clinical experimentation and surveillance of the course of a disease has lingered. While codes of ethics are based within law, the interpretation of ethics and medical law has traditionally supported the professional medical view. The pull to progress of medical science has historically diminished rather than promoted the essential primacy of the
relational structures of the doctor/patient relationship. This is evident in practices of informing consent that have faltered even in the presence of significant legal regulations.
A myriad of attempts to delimit medical practice and control experimentation by producing codes and standards of care and responsibility, both from within and outside of medicine, have proliferated. Significantly, the Nuremberg Code,18 the Declaration of Geneva,19 the Helsinki Declaration,20 and the Belmont Report21 have provided an
18The “Nuremberg Code” of 1947 stated 10 principles to govern the ethical practice of research on humans, insisting on strict conditions of consent (Anonymous, BMJ, Nuremberg, 1996, p.1448).
19The “Declaration of Geneva” in 1948 set out the requirements of ethical conduct of a medical practitioner’s duties to their patients (WHO, 1948/2002).
20The “Declaration of Helsinki” was produced in 1964 by The World Medical Association. It softened the requirement for consent to one of obtaining it “if at all possible.” This declaration has been revised and clarified on a number of occasions with the primacy of duty centred on the individual rather
international backdrop to the practice of medicine as a science in the second half of the 20th century. Such delimiting has met with strong resistance on two particular accounts
from within medicine: The erosion of medical professionalism based on strong ties with scientific methods; and, the requirement for willing bodies for experimentation in the interests of progressing the health of humankind.
The latest patient/body is that of the WLS patient. Having been encouraged to participate in WLS projects, citizen/patients are subjected to the vagaries of uncertain outcomes, bodies ripe for experiment and training. In preparation for concerns raised in the data chapters about informing consent for experimental WLS procedures, I turn now to discuss the practices of informing, and obtaining consent from, patients and subjects to participate in medical trials and new or experimental treatments.