Vulnerability and the criminal law: The implications of Brazier’s research for safeguarding people at risk

In the 1980s the medico-legal landscape looked rather different. Whilst ethical notions of patient autonomy were beginning to seep into the courtroom, the courts’ preoccupation remained rather fi rmly focussed on supporting doctors to do what would be in the patient’s interests, whether in the context of reproductive decision-making, 1 the withdrawal of treatment from children and infants, 2 or the framing of medical malpractice liability. 3 Notions of patient autonomy had not yet gained dominance in judicial discourse, there was no clearly articulated legal test of mental (in)capacity, 4 the legal basis for decision-making in relation to adults lacking capacity had yet to be articulated by the appellate jurisdictions, 5 and the prospect of looking to what reasonable patients might want to know in order to shape the legal obligations of clinicians seemed an oddly exotic practice carried out in foreign lands. 6

At that time, Margaret Brazier began to interrogate legal and ethical conceptions of autonomy and the impact that these had on individuals – a theme to which she has returned on numerous occasions. Some of those subject to the medico-legal gaze were individuals who were considered by the courts to be vulnerable by virtue of disability, 7 illness 8 or youth. 9 Others were rendered

judicial preoccupation with according signifi cant deference to the medical profession. 10

Brazier’s engagement with questions pertinent to the theme of vulnerability continued in the Arts and Humanities Research Council (AHRC) funded project, The Impact of the Criminal Process on Health Care Ethics and Practice , a major four-year research grant for which she acted as Principal Investigator. One of the strands of that project involved exploring possible criminal justice responses to adults who had experienced signifi cant neglect or ill-treatment in hospital. This chapter seeks to review the signifi cance of Brazier’s research in the context of emerging theoretical work on vulnerability, shifting policy responses and legal developments. In so doing, we highlight that portion of Brazier’s early writing that exposed some of the mechanisms through which law renders people vulnerable. We move on to explore, in brief, contemporary accounts of vulnerability and highlight the ongoing relevance of those critiques to Brazier’s recent work on the role of the criminal law in healthcare. Brazier’s work, we suggest, constitutes one of the important antecedents to vulnerability scholarship and continues to engage with themes that are central to that theoretical work today.