Book Review: Law, Ethics, and Medicine: Essays in Honour of Peter Skegg, Mark Henaghan and Jesse Wall (eds), (Wellington; The Law Foundation/Thomson Reuters, New Zealand, 2016)
What is a festschrift? I do not ask this question for want of an Oxford English Dictionary (real or virtual), but rather out of genuine intellectual curiosity and professional commitment to ensuring that academic work continues to make distinctive and valuable contributions. As a minimum, a festschrift is a liber amicorum –a book of friends– as highlighted by Ron Paterson in the Foreword to this collection. It is undoubtedly an opportunity to demonstrate admiration for a colleague, and this is abundantly evident in this book. Having never met Peter Skegg, I am nonetheless struck by the warmth and affection in which he is held among contributors for his collegial commitment, kindness, wisdom, mentoring, intellectual leadership, unfailing drive towards quality, and pioneering contributions. The descriptions of Peter Skegg as humble and whimsical invoke a deep regret that our paths have never crossed. And this sentiment is a good thing because, at base, a festschrift must reflect a sense of the person not only as the academic, but also as an individual. In this respect, this volume succeeds admirably throughout.
But, what else is a festschrift? As I write, I realise that perhaps I am asking the wrong question. Let me rephrase: what has a festschrift, in law, become? It is timely to ask this question because the age of the first pioneers in medical law is coming to an end. The moment of the festschrift is upon us. It is noted in this book, for example, that Peter Skegg has enjoyed a 46-year academic career at the Universities of Auckland, Oxford, and Otago. There are multiple examples in the book of his works being truly seminal in exploring new territory in the nascent discipline. However much we might argue and angst about when medical law began, there can be no credible history of the field that does not include accounts of the works of Skegg. The period starts particularly in the 1970s, but also – we learn – with ‘Capacity of a Minor to Consent to Medical Treatment’ in 1969. This time frame saw other key figures emerge, particularly in the United Kingdom, and each now has a festschrift of their own. Beyond Ian Kennedy and Andrew Grubb (both of whom moved on to other endeavours), we have the publication of First Do No Harm in honour of J Kenyon Mason in 2006,[1]and other festschrifts for Sheila McLean in 2015,[2] and for Margaret Brazier in 2016.[3] Moreover, just as Peter Skegg is lauded as ‘one of the two fathers of medical law’,[4] so too have Mason, Brazier and McLean been hailed as parentibus of the nascent discipline.[5] If ever there was a good reason to produce a festschrift, it is when there is a sound claim to have shaped an entire discipline in its own right. There is a wealth of evidence in this book of the robustness of any such claim for Peter Skegg. In terms of breadth, Skegg has written on a staggering array of topics that would overwhelm the contemporary medical lawyer. As highlighted in the Foreword, these include informed consent, termination of life support and the law of murder, the legal definition of death, body as property, HIV/AIDS, health research, experimentation on children, and patients’ rights. As to their significance, it is here that we get to the crux of the added value and importance of the festschrift. What has Skegg said (for whom we could replace Kennedy, Grubb, Mason, Brazier and McLean) that is, or has been, of any import? Why should we pay attention, and why should we continue to listen?
This returns me to my question: what has the festschrift, in law, become? If it is seemingly a random collection of contributions from academic friends, then this is the liber amicorum mentioned above, but it does not differentiate the intellectual contribution of the festschrift from the ubiquitous edited book. In the same way that the good edited collection must focus in and around a theme(s), so too the good festschrift must focus in and around the academic at its heart. Also, reflecting comment above, in medical law we are genuinely reaching an end of an era both in the development of the discipline and for the contributions of these pioneers. Kennedy and Grubb have already moved on, McLean is retired, Brazier serially succumbs to pressure to continue, and sadly Mason passed away in January 2017 after 22 years as Honorary Fellow in Edinburgh Law School.[6]
In the works honouring these colleagues, we should be able to discern a strong sense of their intellectual legacy. Can we do so with this collection honouring Peter Skegg?
One of the editors, Jesse Wall, provides a summary of each of the twelve contributions. This is helpful, and saves this writer the task of doing so in the style of the standard book review. But, this is also valuable for this review precisely because I am suggesting that we must move beyond what is standard when it comes to the festschrift. For Skegg’s book, I suggest that we can find examples of at least four dimensions of the contemporary (legal) festschrift in terms of how a colleague is being honoured: (i) honour through inclusion of work; (ii) honour through collegiality, (iii) honour through continuation of tradition, and (iv) honour through intellectual legacy. In what follows, I do not suggest that these categories are hard and fixed, nor that they are exhaustive, nor that any one contribution fits only into one category. Rather, I offer these insights for future contributions and editors alike to help us all to reflect collectively on the role and value of the festschrift.
Honour through inclusion
To have a festschrift prepared in one’s name is indeed an honour; but the converse is also true: it is an honour for certain colleagues to include their work in your festschrift. The quintessential example of this is John Keown’s contribution in Law, Ethics, and Medicine on ‘Debating Euthanasia: A Reply to Emily Jackson’. This is an unashamed continuation of the recent book, Debating Euthanasia,7 in which Keown and Emily Jackson wrote blind essays from diametrically different perspectives. This approach and the calibre of the contributions have already made that book a central element in medical law teaching. Keown had stated that he would write a reply after he read his opponent’s views. This chapter in Skegg’s festschrift is that reply, both to Jackson and also to reviewers of the original text. As a stand-alone contribution, its quality is unassailable. As a tribute to Peter Skegg, this is conveyed by its inclusion, but there is little evidence of engagement with Skegg’s multiple works on the topic. More evidence of direct engagement is found in the chapter by Lemmens and Kurz on ‘The Future of Medically-Hastened Death in Canada’. The authors use Skegg’s prediction in 1988 that the gradual lessening of influence of the concept of sanctity of life will impact greatly on legalisation of medically-hastened death: they suggest that this in part explains the current Canadian position, and they examine the consequences as a result. In yet another contribution by John Dawson on ‘The Powers Conferred By Community Treatment Orders’ we are offered a detailed account of powers under mental health law to supervise treatment of compulsory psychiatric patients, but again the voice of Skegg is absent.
Honour through collegiality
The range of antipodean contributors to this book is impressive and speaks volumes about the regard in which Peter Skegg is held. Colleagues who have themselves made long-standing contributions in the field continue to do so here. Thus, we have Loane Skene on ‘Proprietary Rights in Human Bodily Material: Recent Developments’, and Mark Henaghan with colleagues Ruth Ballantyne and Devon Helm on ‘Genes Versus Gestation” Protecting the Interests of Surrogate Mothers’. Skegg’s mentoring influence is very visible in Joanna Manning’s chapter on compensation for research-related injury in commercially-sponsored clinical trials in New Zealand.
Honour through tradition
In contrast, the chapter by Margaret Brazier on ‘The Criminal Process and Medical Practitioners: Shield or Sword’ is a tribute to the fact that much of Skegg’s work has been influenced and impacted by the criminal process. It is easy to forget today that medical law had to fight for its corner. Historically, it was dismissed, variously, as an aspect of tort and/or public law and/or criminal law. In adopting an historical account of the medical profession’s changing relationship with criminal law in its own attempt to regulate quackery, Brazier does justice to Skegg’s own interest in the persistent role of criminal law in the emergence of medical law and the modern medical profession. It is also important to remember that tradition starts with inspiration. Josephine Johnston’s piece entitled ‘If Thy Leg Offends Thee, Cut It Off: Surgery, Consent and the Criminal Law’ is testament to Peter Skegg as a mentor. The topic of body dysmorphia has emerged in recent years and Johnston’s proposed research topic clearly caught his intellectual attention. The chapter is the culmination of their academic relationship and will doubtless continue Skegg’s tradition of walking and exploring the medical/criminal divide. Tradition is also about enduring influence. In a gripping chapter by Nicola Peart on ‘Health and Disability Research Ethics Committees in New Zealand: Will the Current System Prevent Another “Unfortunate Experiment”?’, we are privy both to the NZ ethics review system and how it has changed over time, and also – most intriguingly – to a behind-the-scenes history of influences, particular from Peter Skegg. The enriching value of this chapter is considerable, seen most strongly in its Appendix that attempts to capture the experiential backdrop. Precisely this kind of added value can come from the festschrift format.
Honour through intellectual legacy
In this final section, I group three chapters that do the most work to engage with Peter Skegg’s intellectual contributions. They offer real insights into where and how these might endure. Jonathan Herring’s title speaks for itself: ‘Peter Skegg and the Question No-One Asks: Why Presume Capacity?’. Herein Herring revisits an early article by Skegg that adopts a paradigm-flipping stance and argues for its correctness, but he also shows why he – as a successor academic – would take this even further. In similar style, Marie Bismark’s insightful chapter on ‘Lifting Our Gaze: An Epidemiological Approach to Medical Regulation’ takes Skegg’s work to the next level, so to speak, by arguing for the benefits of having been taught by Skegg and his brother, David, an epidemiologist. This chapter is a wonderful example of next-generation socio-legal-scientific scholarship. Finally, the last word goes to one of the editors, Jesse Wall, who argues eloquently from Skegg’s own position on rights about principles of justice and the New Zealand Code of Patients’ Rights – leaving a disjunct between pragmatism and principle in future directions of protection.
In sum, each of these types of contribution will be found in other festschrifts. I offer this categorisation to alert all of us in academia to our public responsibility to ensure that we always strive to deliver added value through academia.
Notes and References
[1] Sheila A.M. McLean (ed), ‘First Do No Harm’ (Ashgate, Aldershot, 2006).
[2] Catherine Stanton, Sarah Devaney, Anne-Maree Farrell and Alexandra Mullock (eds), ‘Pioneering Healthcare Law: Essays in Honour of Margaret Brazier’ (Routledge, Abingdon, 2016).
[3] Pamela R. Ferguson and Graeme T. Laurie (eds) ‘Inspiring a Medico-legal Revolution: Essays in Honour of Sheila A.M. McLean’ (Ashgate, Aldershot, 2015).
[4] Attributed in the book to Andrew Grubb, ‘Glanville Williams: A Personal Appreciation’ (1998) 6 Med L Rev 133 at 136.
[5] See Stephen Smith, ‘Catherine Stanton, Sarah Devaney, Anne-Maree Farrell and Alexandra Mullock (eds), Pioneering Healthcare Law: Essays in Honour of Margaret Brazier’; Pamela R Ferguson and Graeme T Laurie (eds), ‘Inspiring a Medico-Legal Revolution: Essays in Honour of Sheila McLean’ (2017) 25(1) Med Law Rev 165-175.
[6] In honour of Ken Mason: http://masoninstitutekenmemories.blogspot.com.es/.
[7]Emily Jackson and John Keown, ‘Debating Euthanasia’ (Hart Publishing, Oxford, 2012).
