La prueba pericial y sus características procesales

Lupton (1994a) maintains that because of the socializing process by which physicians obtain and maintain their official credentials to practice medicine, there is a distinct pattern of behaviour and responses. In turn, this pattern (or matrix) has a distinctive type of socially patterned preferences and propensities that constitute a habitus within the field of medicine that is both well established and maintained (Bourdieu & Wacquant, 1992). This long established

‘tradition’ involves a number of elements that Foucault (1975) identified as a particular collection of genealogically recognisable behaviours that culminate in an encounter between physician and patient that operates under a set of ‘rules’ within a ‘game.’ This phenomenon has been described as ‘the professional game’ that Maseide (1991) suggests is an institutionalised norm rather than an exception. The rules of the game are based upon both professional and legal foundations within society that permit the use of established medical interventions. This involves one party, the patient, permitting the necessary medical investigation according to the terms and conditions that are maintained by the physician rather than the patient (Frank, 1999). The patient is thereby expected to utilise the service in a proper fashion, receive the diagnosis - when it arrives – and respond with gratitude and a willingness to participate in the treatment that is offered. Such terms are nearly always driven by a number of factors such as the willingness of the physician to ‘see’ the patient, time constraints, the availability of appropriate technology, and by the medical need to process each ‘case’ as efficiently and objectively as possible. This necessitates the maintenance of a type of personal detachment and control which enables the practitioner to work unimpeded by any patient orientated processes that might detract from the task in hand. Thus, medical authority is maintained, and the use of such power and authority becomes an expectation of both parties. Subsequently, it may be argued that physicians are expected to behave in ways that are as much influenced by the medical field and habitus of practice as any other health care professional (Luke, 2003).

In some situations, the patient’s guardians/parents do not recognise the ‘field of power’ that is medicine and act in opposition to the established ‘rules.’ This may occur when parents either refuse to accept ‘the professional game’ in the first place, or, once at the beginning of the game, question the rules and attempt to disrupt, subvert, or abandon them. These types of resistance have been shown in this thesis to vary considerably from an early (and radical) parental refusal of medical treatment, to the delayed kind that is exhibited by parents who accept treatment but then disrupt or subvert ‘the rules’ in ways that are less publicly visible. In this thesis, a type of ‘established resistance’ often appears when certain factors in the treatment regime do not meet the expected outcomes, or the parents turn against recommended treatment for reasons such as lack of trust or confidence in clinical staff (as discussed in the previous chapter).

As has been shown previously in this thesis, parental resistance may not only challenge individual members of the medical profession, but also the institutions of medicine, media, law and the family as well. This is because the established, professional and socially sanctioned ‘game’ of medicine (or its rules, or even the very components of the game itself) are challenged and threatened by such gestures. In light of the previous discussion on the perceived role of physicians in society, it is pertinent to explore the possible reasons for parental resistance offered by the physicians interviewed for this research. On analysis, their replies do not mirror the discourses offered by parents, but rather those that are offered from a discursive analysis of medical

and legal literature.107 These discourses predominantly feature causes and responses of parental resistance to the medical treatment of children in the western world that reflect what Foucault (1982) referred to as a ‘system of differentiations’, whereby one individual or one group feels free to judge and act upon the actions of others because of medical tradition or law. Physicians operate from a higher form of social capital expressed as status or privilege (Bourdieu, 1984) which enables them to validate their judgements of ‘others’. Subsequently, the narratives of the interviewed physicians mirrored most of the more commonly offered arguments for parental resistance (as noted in Chapter Three, i.e. on religious grounds, distrust of the health care system/physicians/drug companies, different socio-cultural beliefs and values, psychological factors, and ignorance, neglect, and/or malice) from within their own social position. Their responses to parental resistance likewise illustrated a strong and entrenched belief in the ‘rightness’ of established forms of medical decision making based not on the perceived rights of parents, but on the rights of physicians to make clinical decisions from within an established (Foucault, 1975), socially and legally sanctioned position of authority (Foucault, 1977, 1982; Bourdieu, 1984, 1986).

Subsequently, both physicians and nurses perceive their role to assess the behaviour of resisting parents in relation to their own health care practices and to respond to that behaviour in ways which they perceive to be both appropriate and within their given roles.108 The first step towards this role is to make some sort of judgement about parents who resist treatment for their child, and in the positivist and scientific traditions of medical diagnostic traditions, find a satisfactory cause for this behaviour and classify it. This type of differentiation between the norm and abnormal was apparent when the physicians’ interviews were examined, and four main discursive themes emerged from the physician’s perceptions of possible causes of parental resistance as offered during interview. They may be broadly categorised as ‘dissimilar belief systems’, ‘psychological factors’, ‘cultural differences’, and ‘ignorance or neglect’.

Religious or philosophically different belief systems (that are not ‘mainstream’)

This theme draws upon the notion of ‘otherness’109 and reinforces the notion that there exists in the world a number of parents who do not fit into the expected norms of society, usually because they have chosen a path that is not ‘mainstream’, as one physician explains:

107

As outlined in Chapter Three.

108 _{As an example, there are physicians who refuse to treat patients who smoke cigarettes and present with, for}

instance, heart or lung disorders, on the grounds that they judge such people to be unworthy of medical care under the circumstances (Lupton, 1994a).

109

Now nature may take its course and the child then dies so that’s, if you like, one side of the ledger. The other side of the ledger is where the family want to stop treatment or don’t want to pursue a particular treatment - the doctor wants it in the child’s best interests - and that might be often for religious or philosophical opinions on the side of the family that are not perhaps main stream. They may want to pursue or not pursue a line of treatment which the doctor feels is not in the best interests of the family (D3, p.3-4.)

In the above instance, ‘not being mainstream’ is akin to being outside of societal norms. The physician perceives parental resistance as an abnormal parental reaction to what, in his eyes, is a ‘normal’ suggestion for medical treatment that is ‘in the child’s or the family’s best interests’ according to the medical (scientific) viewpoint. It is also an example of the link that is commonly made by physicians to the law and the right to intervene in the ‘best interests’ of the child regardless of the parents’ viewpoint110 and regardless of what they may consider to be in their own overall best interests.

Physicians interviewed for this research are prepared to work with parents who they characterise as out of the mainstream if there are signs of parents attempting to communicate in a more open fashion with the medical team. In the following narrative, a physician talks about the parents of a child that had multiple life threatening complications after birth. He described the family as ‘very, very religious’ but maintained that he could work with that as long as there was adequate communication from the parents. In this instance, the parents had talked about their usually private belief systems:

...they had some pretty strong beliefs [but] it was good that they were fairly honest about some of their beliefs. And that this child’s picture had been put on a website, and the family were praying for it, and people around the world were praying for it, and their feeling was that this baby would be cured by the power of prayer and all they had to do was just wait (D4, p. 2).

This pleased the physician because it reinforced his identity as a ‘good’ physician in as much as such parental ‘confessions’ (in the Foucaultian sense) are more acceptable, and therefore more indicative of compliance, than those parents who will not discuss their belief systems with the physician. In return, the physician encourages such a response by creating space for the parents, not closing the conversation down, and encouraging them to talk about their beliefs. Thus, the ability of parents to be ‘honest’ about private or personal spiritual values is viewed by this physician as a largely positive event:

A lot of people are honest about it, I think. It’s not that it’s more common, I think it’s just we talk about it now. And I think that’s good because people are being honest about what they believe and that, and feel comfortable enough to do that (D4, p.3)

On the other hand, if deeply religious parents take an incomprehensible approach to the need for medical interventions, and instead present a seemingly illogical and highly subjective stance in