1.Introduction

The workshop from which this collection of papers derives asked its participants to re-imagine health law. In a sense that very question assumes the existence of such a concept as ‘health law’, that there is both a burgeoning corpus of case-law and legislation addressing the subject of health and a thriving academic discipline engaged in the study of that area of law.

Not all that long ago, Andrew Grubb contended that what he and Ian Kennedy described as ‘medical law’ was ‘still a comparatively young subject’ and only late in the twentieth century had it emerged in English law ‘as a distinct subject, both as an area of importance in legal practice and as an academic discipline.’A. Grubb (ed.), Kennedy and Grubb: Medical Law, 3rd edn. (London: Butterworths, 2000), 3. Nineteen years later, the evidence that English law regularly engages with healthcare and broader questions of health is incontrovertible. Nor would most scholars doubt the existence of a complementary academic discipline. It is this discipline which I address in a brief reflection on the journey which took me from a being a conventional black letter lawyer to pastures new, or as some of my conservative colleagues suggested (partly in jest I hope) from being a sound common lawyer to becoming an airy-fairy ‘ethicist’. I must make it clear that what follows is in no sense an academic paper. Were I to claim it as such I would commit a multitude of cardinal academic sins, including subjectivity and partiality, in both meanings of the word.

So what was this ‘new’ discipline? We (the academics) enjoy an argument about our name. Should it be medical law, or healthcare law, or health law? Labels are important, as Jonathan Montgomery’s paper will demonstrate,J. Montgomery, ‘What’s in a Name? Labelling Effects of the Role of Law in Health’, in this special issue. and I will say a little about names later but in the first part of this reflection retain the label of medical law. My principal objective is to offer a personal perspective about how medical law grew and flourished in universities across the United Kingdom.

In an introductory chapter of a Festschrift to honour the bioethicist, Alastair V Campbell, Campbell describes himself as an ‘accidental ethicist’.A.V. Campbell, ‘An accidental ethicist: Reflections on my career in medical ethics’, in: V.T. Chuan, R. Huxtable & N. Peart (eds.), Healthcare Ethics, Law and Professionalism: Essays on the works of Alastair V Campbell (Abingdon-on-Thames: Routledge, 2019), 11-19. Campbell envisaged a career in practical theology and the Presbyterian Ministry. I would perceive myself in the same vein, an accidental medical law academic. In the early years of my academic career I taught nearly every subject on the LLB curriculum. My academic writing was predominantly black letter law, focused on the law of torts, and directed at the legal profession and/or law students.

I imagined that at some point I would leave the academy for professional practice. In the meantime I took over as editor of Street on Torts after Harry Street’s untimely death and became an Associate Editor, and ultimately General Editor of Clerk and Lindsell on Torts. Tort was my first ‘academic’ love yet Tort introduced me to my second love, the fascinating world of medical law.

I embarked on a series of papers exploring professional negligence. At the start of this enterprise, I envisaged a paper on doctors being no more than one minor component of that research. The rot however was starting to kick in. Reading Canadian medical negligence cases and in particular, judgments on informed consent, and dipping into North American literature, a new world opened up forcing me to delve into moral philosophy, and acquaint myself with the evolving literature on medical ethics. I was compelled to extend my study of the law, to raid my memory banks from studying Equity as an undergraduate and address fiduciary relationships, examining if and how Equity might play a part in creating a functional therapeutic alliance within the doctor/patient relationship. Above all I read of judges who did not worship Bolam, who did not unthinkingly defer to medical brethren.

Abandoning the accountants and the architects, I researched and wrote a paper on prison doctors published in 1982,M. Brazier, ‘Prison Doctors and their Involuntary Patients’, Public Law Summer (1982), 282-300. an exercise that more than any other work revealed to me the inadequacies of English law when forced into the service of addressing the rights of the vulnerable and the protection of others and how in the context of health, vulnerability could be magnified. Gradually a general non-academic interest in health politics and policy merged with a desire to explore how well beyond medical negligence claims in tort the law engaged with medical care. Slowly to the horror of those conservative colleagues the tort lawyer became a medical lawyer with aspirations to scholarship. And so began my ‘accidental’ journey.

My journey would have little relevance to the development of medical law were it not for the fact that at more or less the same time others were making the same sort of journey. Ian Kennedy delivered and later published his Reith lectures.I. Kennedy, The Unmasking of Medicine (London: George Allen and Unwin, 1981). And in the early 1980’s in a number of Law Faculties across the UK, legal academics who had previously focused on diverse areas of legal scholarship began to turn their attention to the law’s engagement with medicine. Those people, who might be regarded as the first generation of UK medical lawyers, embarked on the journey from many different starting points geographically and intellectually. I give just a few examples. Based at King’s College London, Ian Kennedy’s own background lay in jurisprudence and human rights. Vivienne Harpwood at Cardiff, Michael Jones at Liverpool and I began as tort lawyers. David Price from De Montfort came from a background in criminal law and Derek Morgan was a veritable polymath. Both are sorely missed. Across the Border in Scotland, Sheila MacLean from Glasgow was a family lawyer once upon a time. And in Edinburgh, Alexander McCall Smith came to medical law from criminal law, later to leave us to become a prize-winning novelist. Nor were all the first generation of medical lawyers, lawyers at all. One of the UK’s most distinguished forensic pathologists, the late JK Mason made his third career in medical law,Mason was first a Group Captain in the RAF, later Regius Professor of Forensic Pathology and finally Honorary Fellow in Law at Edinburgh University; https://www.scotsman.com/news/ob- ituaries/obituary-professor-ken-mason-medical-jurisprudence-pioneer-1-4357181. setting a precedent for other medical practitioners to meta-morphosise into medical law scholars. Of course, my first-generation colleagues may have been more organised and planned their journey better, setting clear objectives for their change of direction, and doing all the sensible things that I advise my younger colleagues to do, but did not do myself. I trust that I shall not offend any of my valued colleagues by speculating that their journey too may also have been ‘accidental’, a serendipitous change of discipline.

Planned or not, in universities across the UK, by the last fifteen years or so of the 20^th century, medical law, a ‘new’ area of academic research and teaching took flight, at amazing speed.This journey is addressed more fully in: M. Brazier & J. Montgomery, ‘Whence and whither “modern medical law”’, Northern Ireland LegalQuarterly 70 (2019), 5-30. In 1980 you would have struggled to find a course in medical law on the LLB curriculum, or more than the occasional individual scholar (notably Ian Kennedy and Peter Skegg) researching matters which we would now categorise as medical law but at the time were seen more as analyses of aspects of criminal or family law in a healthcare setting. By 2019, a medical/health law course unit is offered in most LLB programmes. There is a plethora of Masters Degrees, numerous PhD students and several research Centres dedicated to research into law and medicine. In many such Centres medical law contracted a marriage with what was once called medical ethics and now termed bioethics.

How did this come about? What were the aims of this new breed of scholars? Who approved the developments? How did the scholars establish their competencies? In Manchester, and I suspect other universities where Centres for ‘Medical Law’ were established early on, we did none of these things. Groups of colleagues who had one way or another discovered a common interest simply embarked on an exciting journey to explore and teach medical law and ethics. The serendipity of that journey and minimal bureaucracy or oversight had huge advantages for the generation which benefited from it. Imagination, not any sort of ‘five-year plan’ powered the journey. Imagine the time available to read and write truly learned papers if research management teams did not require regular feedback and applying for research funding was an added optional extra. The freedom to do what you wanted to do had a price. At Manchester the courses we began to develop at Post Graduate Taught (PGT) level did not count towards teaching hours for some years. That however ensured that those who joined us did so with enthusiasm, with passion. Ken Mason, I believe, produced all the brilliant work from his third career on an honorary basis. We came to our new academic passion largely untrained in the new discipline. There were no Masters programmes to educate us. Many of us had no doctorate and certainly not in medical law.

Medical law was welcomed into the academy even into conservative law schools. At this junction I need to make a general point about law schools in 1970s and early eighties, many of which were then Faculties of Law. Save for a handful of prestigious individuals, law lecturers did little research in the sense that we now understand research. At many red brick universities, the principal focus of the Law Faculty was the education of future professionals and building relationships with the professions. Some law lecturers (but by no means all of them) did engage in academic writing publishing both textbooks and works relating to practice and the development of the law. The outputs tended to be by lone scholars and practically oriented. The greatest accolade was to be cited in a judgment while still alive. PhD students were rare birds. Very few legal academics in England had doctorates themselves or indeed any training in how to teach.

Outwith the long-established research tradition in international law, scholarly papers tended to focus on black letter law with a helping of jurisprudence. Collaboration with colleagues outside the Faculty was viewed by some law aca- demics as akin to collaboration in Vichy France. The emergence of medical law coincided with the emergence of other areas of socio-legal study including law and economics, environmental law, welfare law, law and criminal justice. To some extent the precedent for medical law had been set by family law.M. Brazier & J. Montgomery, ‘Whence and whither “modern medical law”’, Northern Ireland LegalQuarterly 70 (2019), 7 and 19.

I note how different academic law was in the past because we need to ensure that we understand the development of medical law in the context of its times. The future for later generations of medical lawyers may depend as much on the direction of travel of law schools overall as their individual efforts in our discipline.

The accidental nature of the journey travelled in the early years of medical law in the academy created a field of scholarship and parallel contributions to public policy which were not the product of design or responses to the demands of university hierarchies or politicians. Imagination and passion for change rather than a carefully planned project gave birth to late 20^th century medical law. Thinking about the genesis of our discipline prompted me to reflect on a series of questions:

• Medical law why medical?
• Missed opportunities?
• Medico legal history why forgotten?
• Marrying bioethics?

2.Medical Law Why Medical?

Scarcely had the first generation of medical lawyers settled into their new field of scholarship before a second generation joined the party from the late eighties to 1990’s. This group included Marie Fox, Graeme Laurie, Jean McHale, and Jonathan Montgomery. They questioned the name ‘medical law’. The term medical they argued was flawed in a number of respects. In its focus on the relationship of doctor and patient, medical law risked neglecting important areas of law notably matters of access and delivery of health care and the NHS, matters of public health and excluded other health professionals. Moreover, the term medical law itself could be seen as privileging that very group of professionals whose power and paternalism Kennedy and the first generation sought to question.J. Montgomery, Health Care Law (Oxford: Oxford University Press, 1997), 1-4; J. Coggon, What Makes Health Public (Cambridge: Cambridge University Press, 2012), 86-91; T. Hervey & J. McHale, European Union Health Law: Themes and Implications (Cambridge: Cambridge University Press, 2015), 10-29. A better name for our discipline would be health care law.

They had a case. The focus on the doctor-patient relationship was constraining and already outdated in some respects in that the old model of care provided by one doctor to one patient (maybe the very notion of a relationship) was breaking down in secondary care. The name might also be seen as failing to reflect the role of law in relationship to advances in science. I doubt that any of the medical lawyers intended such a result or inference. We saw the whole domain of healing as within the umbrella term medical. Medical law academics did not shy away from addressing the radical new developments in reproductive medicine or the complexity of transplantation.

It is important to remember that the trigger for the birth (or as I argue later re-birth) of law’s engagement with health was the combination of the paternal- istic conduct of doctors, the outright bad behaviour of a very few doctors, and the supine response of the regulators and the courts deferring all too often to medical brethren. Bolamisation ruled. Bolam was a dragon to be slain and for many years the judges and regulators appeared to be the dragon’s prime defenders. It should not be overlooked that there were also individual doctors who worked in a much closer partnership with the patients sometimes to their detriment. Obstetrician Wendy Savage was hounded for her holistic patient focused practice.W. Savage, The Savage Inquiry (London: Virago Press Ltd., 1986). There were a growing number of doctors who had no desire for deference, and the country was changing too. Privilege was questioned. Deference was waning whether it be deference to doctors, clergy, teachers, judges or the Royal Family. The terminology medical law reflected the principal concerns of the times.

If I concede that medical law was a flawed descriptor, it soon became apparent that the second choice of name, health care law, was also insufficient. Lawrence Gostin is among those who advocate health lawL. Gostin, Global Health Law (Cambridge: Harvard University Press, 2017). and so the workshop held in Birmingham in September 2018 was christened. Health law better describes the vast combination of factors that impact on health and should engage our attention. Those factors include, in particular, recognition that health is about more than treating illness; that public health law is as important as the role of law governing the doctor-patient relationship; that identification of both rights and responsibilities for health is crucial and highlights that a purely domestic law response to a question of fundamental rights and health cannot be satisfactory. Health is not the prerogative of those of us who live in the richer regions of the planet.

Just to be difficult, I am unsure that even health law captures all we want to do. In a recent paper co-written with my much more knowledgeable former doctoral student, David Lawrence, we explored whether conscious Androids and AGI should be afforded human rightsD. Lawrence & M. Brazier, ‘Legally Human? “Novel Beings” and English Law’, Medical Law Review 26 (2018), 309-327. – a long way from my first publication, a case commentary on the decision on recovery of pure economic loss in tort in Spartan Steel v Martin (Contractors Ltd).M. Jacobs, ‘Commentary: Spartan Steel v Martin (Contractors) Ltd’, Modern Law Review 36 (1973), 314-317. This Commentary was written before my marriage. Perhaps the legal academics should mirror our colleagues in bioethics and opt for bio-law? The ugliness of that ‘name’ does not attract me.

3.Missed Opportunities?

What’s in a name – does it matter as long as we get the direction of our journey right? I used to think not, but have come to take the view that names have some effect and in medical law we may have missed some opportunities derived in part from the constraints of a focus on legal questions arising from treating sickness. In this context the possibilities of alliances with other emerging legal disciplines including environmental law, international law and to a lesser extent law and economics were not pursued. In efforts to establish our credentials in the academy did we fail to see the strength there might be in wider alliances? Might there have been a sub-conscious worry that in embracing health in its widest context the environmental lawyers might steal our clothes? An obsession with sickness and treating disease also led to wasted time exemplified by pointless debates such as is infertility a disease, and must a person seeking transgender surgery prove they are ‘ill’.

Jonathan Montgomery addresses much more fully the way labels impact on our recognition in the academy.J. Montgomery, ‘What’s in a Name? Labelling Effects of the Role of Law in Health’, in this special issue. I ask myself whether, regardless of labels, enough effort was made to demonstrate that we have a proper place in the academy, that medical lawyers can be scholars, not just quite clever journalists. Health law swiftly gained a high-profile role in its contribution to policy making. It is a contribution of which we should be proud. At times, however, this role takes colleagues out of their universities and away from immersion in scholarship. Working for government may require the scholar to dumb down the message for the consumption of law-makers. Engaging the public in debates about controversial questions such as saviour siblings, deemed consent to organ donation and many other legal and ethical dilemmas demand different skills from addressing international academic conferences. While such activity may win plaudits in terms of the impact agenda of the Research Excellence Frame-work (REF), the public role of health lawyers seems sometimes to contribute to a view we are a tad light-weight.

Not for one moment would I wish to see health lawyers abandon our public role. Regardless of Brownie points in the REF, using our work in the direct service of those who fund us is a privilege which we should embrace. Nor is this a one-way process. Engaging with those who are personally affected by the dilemmas we address deepens our own understanding and feeds back into research. What is required is that we articulate clearly how we balance our roles within and beyond the academy. Public service and scholarship should be complementary. In the course of the health law academic’s career, there will be times when one takes precedence over the other. Features of current academic life may make that easier to say than do, given the demands there will be from the universities who employ us and offer longer term job security.

4.Medico Legal History Why Forgotten?

I promise to say only a little about my current third academic love, medico-legal history, save to stress that a rich history exists and to regard medical/health law as young is mistaken.M. Brazier & J. Montgomery, ‘Whence and whither “modern medical law”’, Northern Ireland LegalQuarterly 70 (2019), 7-14. The flurry of activity in the early 1980’s, the impact of Kennedy’s Reith lectures mark not the birth of medical law but its rebirth, what Jonathan Montgomery and I have described as ‘modern medical law’.M. Brazier & J. Montgomery, ‘Whence and whither “modern medical law”’, Northern Ireland LegalQuarterly 70 (2019), 6. True, in the latter decades of the 19^th century and the first seven to eight decades of the 20^th century law’s engagement with medicine seemed to hibernate. Long prior to the Medical Act 1858 and the creation of the General Medical Council, way back to the 14^th century are to be found a host of statutes, royal proclamations, and legal cases relating to medical negligence, confidentiality, medical manslaughter, consent, the disposal of the dead, legal issues relating to public health and much else. Henry VIII was responsible for more statutes, and Royal Charters relating to medical practice than he had wives. Travel further back to medieval times and the canon law of the Roman Catholic Church legislated on matters on medical law across Western Europe.

Our ancestors asked many of the same questions that we do. Ignoring our history we hit Ground Hog Day too often and waste time. Myths were allowed to flourish the most pernicious being the Bolam myth that from time immemorial judges deferred to doctors – not so.M. Brazier, ‘The Age of Deference – A Historical Anomaly’, in M. Freeman (ed.), Law and Bioethics (Oxford: Oxford University Press, 2008), 465-475. From the 16^th to mid 19^th century pleas for deference got short shrift in the courts. The American legal historian, Harold Cook says of Sir Edward Coke’s judgment in Bonham’s Case that Coke made it clear beyond doubt:

The College [of Physicians] was not to be the only expert judge of medical practice – or rather any judge with a university education could find whether a medical case had been handled correctly or not.H.J. Cook, ‘Against Common Right or Reason: The College of Physicians versus Dr Thomas Bonham’, American Journal of Legal 29 (1985), 301-317.

History also identifies enduring themes which can alert us to possible dangers when an old problem arises in new form. Recalling the bitter and sometimes violent public reaction to anatomical dissection in the 16^th century and later to the Anatomy Act 1832 might have enabled the organ retention controversy to be avoided or at least handled better.R. Richardson Death, Dissection and the Destitute, 2nd edn. (Chicago: University of Chicago Press, 2000).

5.Marrying Bioethics

The partnership of law and ethics in our field of study has contributed intellectual and practical benefits to, I hope, both partners and the scholarly and public work we do. My own career and my enjoyment of research and teaching have been enhanced beyond measure by the bioethicists I have worked with in Manchester and others with whom I have worked in public service. I can only pay tribute to my colleague at Manchester for many decades, John Harris. Our meeting was accidental but wholly fortuitous. Our disagreement on almost every major question of ethics kept us both on our toes but never impeded a constructive partnership. Away from Manchester, Alastair Campbell and David Archard were both invigorating and staunch colleagues with whom I shared some difficult times in the policy arena.

Bioethicists share our interests but bring a different background of know- ledge and intellectual skills to assessing dilemmas and crafting solutions. Divorce would damage our joint contribution to scholarship and policy making. There are, nonetheless some matters to be wary of if a happy marriage is to flourish. We should guard against being perceived as one single discipline rather than two complementary strands of scholarship.

In 2019, unlike the 1980’s, there are some amazing scholars who are fully conversant with law, ethics and philosophy. Many of us are not. I am quite often rung up by the media and asked to comment as a medical ethics expert. I have been introduced at academic lectures as Professor of Medical Ethics. If I let those descriptions go unchallenged I should be sued for the tort of passing off if not deceit. I am a lawyer. I have a lively interest in ethics and some knowledge acquired over the years. I am not a bioethicist though some bioethicists insist that I am. I am a lawyer, proud and happy to be so.

Law matters, as Emma Cave and I say in the Preface to Medicine Patients and the Law. Law is not boring.M. Brazier & E. Cave, Medicine, Patients and the Law, 6th edn. (Manchester: Manchester University Press, 2016), xxii. It is not just the way we fix a problem after the ethicists have teased what the answers should be. Lawyers and bioethicists share a passionate interest in many of the same questions relating to health law and advances in biomedical science. There are crucial questions where lawyers are much more involved and vice versa. Clinical negligence or debates on prosecuting doctors for ‘medical manslaughter’ and patient safety are not often addressed by our bioethics partners. David ArchardSee, for example D. Archard, ‘Criminalising medical negligence’ in A. Alghrani, R. Bennett, & S. Ost (eds.), The Criminal Law and Bioethical Conflict: Walking the Tightrope (Cambridge: Cambridge University Press, 2012), 236-250. and one or two others have engaged in the debate but it has been mostly a law dominated arena. Greater ethical input would be welcome. However, it is also important to be clear that other disciplines are useful and sometimes necessary partners in re- search and in the context of matters such as clinical negligence and cries of an impending malpractice crisis, sociologists and economists are valued colleagues.

Strong links with committed health professionals remain crucial. The law- bioethics partnership should not be exclusive. The Centre for Social Ethics and Policy (CSEP) at Manchester was founded from as a result of collaboration between four disciplines. The theologian, Anthony Dyson, and medical practitioner, Mary Lobjoit, brought experience and expertise central to the flourishing of CSEP.

We must avoid simply eliding law and bioethics. Doing so creates a danger which feeds into populist responses to health law/bioethics dilemmas, the view that once X is seen to be unethical it should be prohibited or at least rigorously regulated. The argument may be taken further to a conclusion that if X is unethical, it should be criminal. Or sometimes the argument is the other way round if Y is legal it must be ethical. Both stances are unsustainable. Careful assessment of the role of law is crucial. While our brief is much more than being the handmaid of the bioethicists, we must not neglect the ‘technical niceties of legal analysis’.M. Brazier, ‘Times of Change’, Medical Law Review 13 (2005), 1-16 at 16; and see J.K. Mason, ‘Autonomous Humanity’, Medical Law Review 20 (2012), 150-156. Both partners need to be alert to their own limitations. It is all too easy for a lawyer such as me to essay a superficial sound bite on ethics and with respect for a bioethicist to do the same in relation to law. Doing so, offering a ‘Rent a Quote’ service to the media, feeds the perception that health law and bioethics academics are somewhat lightweight.

6.The Future

So what might the future hold? There will be no shortage of material demanding of scrutiny. ‘Old’ problems have not gone away and ‘new’ issues arise as science advances. There is indeed ‘a feast of developments calling for academic enquiry’.M. Brazier & J. Montgomery, ‘Whence and whither “modern medical law”’, Northern Ireland LegalQuarterly 70 (2019), 30. Two dangers lurk in the shadows, one internal and the other external.

Let us take the internal danger first. At seminars and meetings around the UK, I have on a number of occasions heard the view expressed that ‘medical ethics and medical law are dead as the dodo’, not worth further attention. Research into questions arising in the clinic, at the bedside or in any context of the health professional-patient relationship are yesterday’s concern, what matters now is bioethics and law applied to the amazing scientific advances on the horizon. Our study should focus on the laboratory. There is a seductive attraction to such a claim. Womb transplants for men, ectogenesis, conscious robots, humans made from scratch in the laboratory, what riches to enjoy. The bright young health lawyer can forget the mundane, stop puzzling what exactly Montgomery v Lanarkshire Health Authority[2015] UKSC 11. means when for example it is applied to parents authorising treatment of their sick child. She can cease ploughing through the latest GMC guidance, or analysing trends in clinical negligence. The Brave New World awaits you as the next step in your journey.

Such a direction away from the health-related dilemmas of the majority of people, professionals, patients, regulators who deal with the thorny problems of everyday engagement with health and the body is betrayal of those people.

Read about babies dying in FurnessFurness hospital deaths: Midwifery Council criticised’,

https://www.bbc.co.uk/news/uk-england-cumbria-44126397. and Shrewsbury hospitals,‘Shropshire baby and mother maternity deaths review widened’,

https://www.bbc.co.uk/news/uk-england-shropshire-45366648. of vulnerable elderly patients in Gosport,‘Gosport hospital deaths: Evidence strong enough to bring charges’,

https://www.bbc.co.uk/news/uk-england-hampshire-46924754. of parents seeking cannabis-based medication for their children.‘Medical cannabis is now in the UK but nobody can get a prescription’,

https://www.wired.co.uk/article/medical-cannabis-nhs-prescription. Then convince me that the questions ‘old’ medical law addressed regardless of labels are no longer important. I love the Brave New World. We should not abandon the Bad Old World.

The external danger lurks in our law schools. A greater focus on training and skills, curricular reform which places more emphasis on the core curriculum and clinical legal education may squeeze out undergraduate course units in health law. More emphasis on teaching and the tsunami of administration around teaching could further reduce time for research while limiting the development of research-led teaching. Nor will the REF necessarily help protect all research. The trend to making more appointments on teaching focused contracts may result in universities reserving a research role for a very few elite scholars and those who can bring in enough grant income to meet a substantial portion of their salary. Health lawyers may be better placed than some to attract funding even in a highly competitive environment. What will suffer is what John Harris often said was the principal methodology of health lawyers and bioethicists ‘thinking’.

These threats should motivate our community of scholars to succeed, not demoralise us. Had I been asked in 1980 whether health law would attract the abundance of new generations of scholars and the plethora of doctoral students whom I have seen emerge victorious from their vivas, I would sadly have shaken my head. So in 2019 while the journey may not be smooth, our discipline will flourish. The essays in this collection form part of a corpus of scholarship which testifies that scholars working in the field (whatever they choose to call it) have keen intellects and lively imaginations. Re-imagining health law will be exciting and productive. The enterprise will be made easier by the nature of our community. The greatest pleasure and benefit I have encountered in my journey have been the collegiality of fellow health law academics. At hundreds of conferences and seminars, I have witnessed the way in which colleagues can make penetrating yet always constructive criticisms in a supportive manner. Point scoring is rare. There is an ethos, in practice and not just theory, that the health law community encourages and supports each other. It is possible to take risks with new ideas, and allow imagination to flower, knowing that weaknesses in argument will be exposed, but not derided, and knowing too that the critics will share their expertise to help develop your strengths.

Crystal balls are notoriously unreliable. Perhaps foolishly I might venture to predict that two areas of practice and study will dominate the directions of health law in coming decades? A much greater focus on global health, a development already under way, is highly probable. Research into global health law will need to ensure that scholars establish strong international networks working with colleagues in those countries facing the greatest global health challenges. The spectre of health lawyers helicoptering into affected parts of the planet from the richer countries and producing ‘solutions’ must be avoided. Within a focus on health law internationally, some of the thorny problems of the past, for example, the health rights of women and children may need to be re-visited in a different context to battles past in the United Kingdom and Western Europe. Alas maybe I should not say battles past. In Europe and the USA, rights which women have come to take for granted, rights over their own bodies, are under attack. In relation to children, case-law illustrates a growing number of parents and pressure groups in the United Kingdom who preach a dogma of close to unfettered parental rights.

Domestically and internationally the law relating to mental health and social care is likely to acquire even greater practical importance. The sheer numbers of people, particularly older people, living with cognitive disabilities will challenge existing analyses of capacity, rights and responsibilities. Matters of access to health/social care and fair allocation of inter-generational resources will have to be re-visited. The burgeoning expansion of mental health and social care law will once again pose questions about the boundaries of ‘health’ law. Even more cases relating to the care of vulnerable people will raise, in relation to one person, matters that would traditionally be labelled medical law, welfare law, family law, and administrative law.

More dramatically the most severe instances of cognitive failure will increasingly give rise to fundamental questions of what it is to be ‘human’ or to put it differently what being ‘human’ means. Thus not only are problems of how affected individuals should be treated and debates on assisted dying certain to continue but questions of ‘humanity’ will take us to and across the boundaries of science fiction. Would a wholly synthetic entity be human and/or qualify for human rights? If so what of the higher primates and other non-human animals? Health law academics need to juggle diverse skills. Developments in medical science and society generating high profile controversy increase the danger of less than rigorous responses and the risk that health law scholarship becomes reactive. Yet no response or delayed responses marks to an extent a failure in the public service role which health law academics have embraced. Contribution to public debate, a role as ‘expert’ witness, must be matched by and grounded on reflective scholarship.

The multitude of human (and non-human animal) dilemmas provoking legal and ethical conundrums force consideration of what is the core of our sub-discipline. Future health law research might adopt the model of this collection of essays with its balance of papers critically analysing developments in the law in practice and papers focused more centrally on jurisprudential and philosophical analysis, plus of course research which seeks to do both and more. As the papers which follow this Prologue demonstrate, legal and bioethical research in our discipline not only can, but should be, viewed through a variety of lenses.