17 March 2020

The COVID-19 pandemic: are law and human rights also prey to the virus?

Graeme Laurie, Professorial Fellow, Edinburgh Law School

COVID-19 was declared a global pandemic by the World Health Organization (WHO) on 11 March 2020. In the United Kingdom, after extensive criticism across different sectors of society regarding government inaction and ineffective policies  as well as piecemeal communication about possible measures relating to citizens over age 70 to maintain social distancing for a period of months   HM Government announced on 15 March that daily press conferences will be held “…to keep the public informed on how to protect themselves”. As for first responders and other professionals who find themselves at the front line of the battle to delay the spread of the virus, guidance is available, but its accessibility and absence of detail is worrying, as a cursory look at the official website will reveal. Importantly for this blog, the Department of Health and Social Care’s Coronavirus Action Plan makes no mention whatsoever of the legal position underpinning any of its initiatives. So, in this blog I ask:

Are law and human rights also prey to the impact of the COVID-19 virus?

In attempting to answer this question, I make the case for constant vigilance with respect to the role of the law and human rights in a public health emergency, as well as giving a brief account of the complex legal provisions that can be deployed as public health measures. I offer a checklist of considerations for delivering legal preparedness in emergency contexts, including the value of civil liberties impact assessments that can help to monitor compliance with law and human rights throughout these difficult times. 

On the importance of law in a public health emergency  

Law is a social tool of considerable importance. This is never truer than in the middle of a global health crisis when the situation changes rapidly and dramatically on an hourly basis. Law and legal institutions become crucial in maintaining the delicate balance between order and chaos, between public and private interests, and between promotion of the common good and protection of civil liberties. Global health emergencies require rapid, complex, multi-agency and multiple agent actions, as well as multi-layered-readiness at four stages, being: (1) preparation, (2) response (3) protection and (4) recovery. Lack of clarity about the role of law, or continued uncertainty about legal rights and responsibilities, can seriously hinder or impede effective responses. It is now clear that we are deep in the third phase (protection) of the COVID-19 pandemic, and any national and international governmental failures to prepare in advance for this latest pandemic will rapidly become apparent. This makes it all the more crucial that attention is paid to legal preparedness to respond responsibly to an rapidly-changing – and undoubtedly in the short-term  worsening situation, as plans and contingencies fail. 

At the time of the N1H1 flu pandemic, just over a decade ago, a speaker at a US summit on preparedness made the following astute comment:

 …when it comes to pandemics, any community that fails to prepare – expecting that federal government can or will offer a lifeline – will be tragically wrong. Leadership must come from governors, mayors, county commissioners, pastors, school principals, corporate planners, the entire medical community, individuals and families [1].

This suggests that there is a risk in over-centralisation of response mechanisms to global health emergencies. The threats are manifold, potentially affecting communication, coordination and contingency planning. From a legal perspective, it highlights that first responders and others, such as healthcare professionals, hospital and school administrators, and local officials must be properly supported and folded into rapid decision-making when responsibilities for hands-on management of the crisis falls to them. As a minimum, there must be clarity of legal responsibilities and obligations, including domestic laws and international human rights. 

What is the legal position on public health emergencies?

The legal position on responding to a public health emergency of international concern (PHEIC), as it is officially termed in legal parlance, begins with the International Health Regulations (IHRs, 2005). These establish ‘an agreed framework of commitments and responsibilities for States and for WHO to invest in limiting the international spread of epidemics and other public health emergencies while minimizing disruption to travel, trade and economies’. However, while acknowledging that the WHO and the IHRs may play an important role in surveillance and reporting of pandemics, and in providing a framework for tackling them, effective action must begin and end at the state level, as it remains the sole entity – in principle – with the sanctioned power to enact policies that can lawfully curtail civil liberties. This is also because of an obvious and serious limitation within the international regime: the absence of sanction mechanisms within the international framework to require compliance by countries. And, while WHO can assist a country in its surveillance and response if requested (Article 44), the real problem of dealing with an aberrant state remains.

Domestically in the UK, the legal position is piecemeal (to say the least). While the Coronavirus Action Plan acknowledges the importance of all four nations’ administrations to work together, the legal basis for this is fragmented. For example, in England and Wales, the bulk of legal authority is found in the Health and Social Care Act 2008, amending the Public Health (Control of Disease) Act 1984. The 2008 Act amendments are largely concerned with responses once a threat has already presented itself; it less concerned with contingency planning to coordinate responses prior to any such threat. While there are provisions for monitoring and notifying outbreaks, there is far less consideration for joined-up working beyond the very local response. Sections 45B and 45C of the 2008 Act confer powers on the Secretary of State to make provision by Regulations with respect to health protection measures for international travel and domestic affairs respectively. Provisions can be made both with respect to requiring action from professionals and authorities in the face of a public health threat and with respect to members of the public, their behaviour and their rights. As to the effect on members of the English and Welsh public, Regulations can impose restrictions or requirements in relation to persons, things or premises in the event of or in response to a threat to public health (s.45C(3)(c)). In particular, this can include a requirement that a child be kept away from school, and a prohibition or restriction on the holding of an event or gathering (s.45C(4)). Regulations can also include provision for imposing ‘a special restriction or requirement’ as set out in Sections 45G(2)(e)-(k), 45H(2), and 45I(2). These include, among other things, that a person be disinfected or decontaminated; that a person wear protective clothing; that a person’s health be monitored and the results reported; that a ‘thing’ be seized or retained, or be kept in isolation or quarantine; or that a premises be closed, decontaminated, or destroyed. Pursuant to section 45D(3), however, and unlike the powers in relation to international travel, domestic Regulations may not require that a person (i) submit to a medical examination; (ii) be removed to a hospital or other suitable establishment; (iii) be detained in a hospital or other suitable establishment, or (iv) be kept in isolation or quarantine. Such measures may be imposed only by an Order from a Justice of the Peace on application from a Local Authority. 

Similar provisions exist in Northern Ireland and Scotland, but underpinning all of this at the UK national level is the Civil Contingencies Act 2004.  The Civil Contingencies Act 2004 (CCA) is a measure of last resort when it comes to the creation of ‘emergency powers’, leaving existing legislation to govern responses across an incredibly wide range of areas and actors. The ability of this legislation to empower all relevant actors to respond adequately is questionable. The CCA itself lays down a broad framework for preparedness, but it is far from clear how, or indeed when, this would operate when we move from the stage of preparation to action, and whether the complex lines of communication and coordination that are essential to an effective response to a public health emergency are in place. Nor is it clear whether relevant actors are sufficiently apprised of the measures and the legal parameters within which they will be expected to act when an emergency such as COVID-19 is upon us. 

The legal position, albeit complex can be summed up as follows: legislation such as the 2008 Act (and equivalent measures in Scotland and Northern Ireland) should be used in the first instance, while escalation of a crisis to an ‘emergency’ – defined to include “(a) an event or situation which threatens serious damage to human welfare in a place in the United Kingdom”  triggers the centralised provisions of the CCA 2004. But how are officials, professionals and the public to navigate such complexities and to know what is being done legally or when the balance has been tipped too far away from the adequate protection of civil liberties in favour of a putative threat to public health?

Legal preparedness in the face of public health emergencies

In an attempt to begin to answer this question, I offer further core questions that should be at the heart of all plans and planning exercises for global or public health emergencies. These are:

i. Are all public health officials and other actors with responsibilities fully apprised of the relevant legal provisions, their duties and the limits of their roles?

ii. What is the level of informational joined-up-ness between sectors, jurisdictions, disciplines and professionals? That is, are lines of communication and balance of responsibilities clear within the complex web of potential actors? 

iii. Do existing laws impede preparedness, either through unnecessary provisions or lack of clarity or inflexibility?

iv. Are we aware of gaps in existing legal provision and are we clear on how these gaps will be filled (in particular how the CCA will be deployed)?

v. Are we naive in our premises, for example, that voluntary compliance with self-isolation or quarantine will prevail? If so, are we clear enough on what will happen next? 

vi. Do we have adequate mechanisms to test legal preparedness and to benchmark best practices? 

vii. Do we have adequate mechanisms to test the competencies of relevant actors with respect to legal preparedness?

viii. What are provisions for effective communication and coordination of legal materials and information about legal responsibilities?

ix. What provisions exist for decision-making when information is ‘less than complete’? 

x. What is the role of social distancing and who has authority to require or restrict it?

xi. What is the role, if any, of the military?

Wither human rights?

For so long as the UK remains a member of the Council of Europe and signatory to the European Convention on Human Rights, all legal preparedness must also be about ensuring that any measures taken that impact on civil liberties and human rights are necessary and proportionate to the social objective sought. The Civil Contingencies Act 2004 cannot amend the Human Rights Act 1998 (c.42), and any emergency regulations made under the Act are treated as subordinate legislation for the purposes of the 1998 Act. 

Pursuant to Section 22 of the 2004 Act (Part 2), emergency regulations may provide for: 

• The confiscation of property (with or without compensation); 
• The destruction of property, animal life or plant life (with or without compensation); 
• The prohibition or requirement of movement to or from a specific place; 
• The prohibition of assemblies (of specific kinds, at specific places or at specific times); 
• The prohibition of travel. 

Most obviously, these provisions could raise the following human rights/civil liberties issues:

• privacy; (Article 8 of the European Convention on Human Rights) 
• property; (First Protocol to the Convention); 
• mobility/liberty; (Article 5 of the Convention); and  
• freedom of association; (Article 11 of the Convention). 

There are a number of points to note about the nature and operation of human rights laws as they relate to global/public health emergencies. It is trite that while human rights are fundamental rights, in most instances they are not absolute. That is, while human rights instruments identify protections that are considered to be of core value to our society, these do not deserve protection at any cost. Exceptions are possible. The starting point is, however, that fundamental rights should be protected and the onus is on those who would interfere with such rights to justify any interference. Thus, Article 5 (protection of liberty) allows for detention of persons ‘for the prevention of the spreading of infectious diseases’, while Articles 8 and 11 (privacy and association respectively) permit interferences ‘…for the protection of health…or the rights and freedoms of others’. By the same token, interference with some rights is more readily justified than in other cases. For example, Article 5 only permits exceptions from a restricted and limited list, while Articles 8 and 11 permit a range of exceptions which are subject to the watchwords of necessity and proportionality. In such cases, interferences with human rights are only justifiable when they are in accordance with the law, necessary to address a pressing social need, and employ proportionate means towards specified ends. This can only be judged on a case-by-case basis, but permits a degree of latitude in determining what is necessary and proportionate, albeit with the proviso that interferences should be minimal to achieve the social objectives. The practical consequence of Article 5 is, however, that a potentially higher level of protection is accorded, in that it is more difficult to depart from its provisions. This gives effect to a form of hierarchy of rights, such that the ease with which interferences can be justified ranges from most difficult (Article 5) through moderate (Articles 8 and 11) to more easily justified (Article 1; Protocol 1 on property). 

Thus, central to the protection phase of legal preparedness is the need for the courts to be maintained, or at least for judicial oversight to be made possible at all times. There is a lack of clarity in the possible meanings of the threshold terms used in law, such as ‘necessary’, ‘proportionate’ and ‘public interest’. Notwithstanding, there is a wealth of case law and literature which has attempted to flesh-out meaning over time and on which to draw. 

Moreover, from the perspective of the ethical content of the value-based decisions, we can consider the intervention ladder developed by the Nuffield Council on Bioethics which offers a way of thinking about possible government action and appreciating the associated consequences for civil liberties. This ranges across options from ‘doing nothing’ and monitoring a situation, through measures oriented towards ‘enabling choice’, ‘guiding choice’, ‘restricting choice’ and, ultimately to ‘eliminating choice’. As the intervention becomes more intrusive, so the need for justification becomes more compelling. While acknowledging that there is an ethics element built into UK planning, governments and other responsible parties would do well to consider a Civil Liberties Impact Assessment to accompany all contingency plans with particularly close attention paid the points at which escalation of action will take place. Such an impact assessment might be modelled, for example, on existing privacy/data protection impact assessments which have operated in many countries world-wide for many years and that in some instances are now required under the EU’s General Data Protection Regulation (GDPR). A Civil Liberties Impact Assessment is also akin to human rights impact assessments, save that its scope will be wider than only looking at rights – our civil liberties encompass both rights and civic freedoms and protect us from state action even when any given human rights instrument might not apply. This is particularly important to bear in mind in the current UK post-Brexit era where there is open hostility in many quarters towards the European Convention on Human Rights. 

Legal Preparedness for Pandemic: a 10-point Plan

Drawing on all of the above, I suggest that there are 10 key areas where the UK could pay close attention to improving legal preparedness for dealing with the current COVID-19 pandemic (and all future global/public health emergencies). 

1. Assessing and meeting the (legal) training needs of all relevant actors, and not merely responders identified in legislation; 

2. Drafting legal instruments to govern practices in emergencies and testing legal validity beforehand; 

3. Establishing an open access central repository of legal instruments and measures; 

4. Identify more clearly tolerances for escalation of efforts and carrying out civil liberties impact assessments on all stages of contingency planning; 

5. Assessing and providing support for courts and associated personnel as crucial mechanism for dispute resolution and protection of civil liberties during outbreaks; 

6. Articulating and exploring the legal situation in the event of full escalation, and in particular, considering worst case scenario planning and the arrangements for policing such scenarios; 

7. Establishing and clarifying legal authority for deployment of military, limits and controls, if contemplated; 

8. Learning (legal) lessons from other public health emergencies, for example, SARS in Canada & Asia, Anthrax in Scotland, or even emergencies in other government departments such as the experiences of the Department for Environment, Food and Rural Affairs with foot-and-mouth disease.

9. Clarifying and assessing balance of powers and competencies across jurisdictions; 

10. Conducting further research on evaluating legal preparedness, for example, how best to protect civil liberties as threats increase and/or plans fail.

Acknowledgement

*This blog is based on research conducted to assessed legal preparedness in the wake of the H1N1 pandemic in 2008, and draws on the text published as Laurie, G & Hunter, KG (2009), 'Mapping, Assessing and Improving Legal Preparedness for Pandemic Flu in the United Kingdom', Medical Law International, vol. 10, no. 2, pp. 101-138. https://doi.org/10.1177/096853320901000202



[1] Special Supplement, The National Action Agenda for Public Health Legal Preparedness, (2008) 36:1 Journal of Law, Medicine and Ethics at 11.

17 May 2019

The professional duty of candour: widening the lens

A new, insightful blog post written by Annie Sorbie, Lecturer in Medical Law and Ethics and Zahra Jaffer, who is a PhD candidate at the Mason Institute. The article was published on the Professional Standards Authority blog, and can be accessed through the link.

10 May 2019

Protecting and promoting: Can regulatory stewardship lead the way in health research? A roundtable discussion at Edinburgh Law School – 29 March 2019


Edward Dove

On 29th March 2019, a roundtable of research ethics committee (REC) members, research managers, regulators, patient advocates, and scholars was convened at Edinburgh Law School to discuss “regulatory stewardship”, a potentially novel regulatory model of health research oversight that could improve regulatory interactions among different stakeholders.

The roundtable partially built on recent empirical research I conducted on the roles and practices of NHS RECs in light of recently implemented health research regulation that explicitly seeks to promote health research in the UK, in part by streamlining regulation itself. It was unclear to me how these recent regulatory changes, stressing efficiency and maximisation of UK competitiveness for health research and maximisation of return from investment in the UK, might affect the substantive and procedural workings of RECs. It was also unknown whether or how the modification of research regulation at the level of legal architecture to promote research—seen, for example, in the Care Act 2014 and in the mandate of the Health Research Authority (HRA)—might ‘trickle down’ to the day-to-day practices of RECs.

The research findings from that empirical investigation can serve as a basis for further assessments of the relationship between regulatory actors and health research, thereby opening the potential to inform policy decisions and policy reform. Indeed, a key aim of this roundtable was to consider a reimagining of ‘regulatory spaces’ in health research to optimise their effectiveness in delivering productive regulation. Core questions included:
  • How might participant protection and research promotion work together in a regulatory framework, if at all?
  • Is there a need for a deliberative space within which RECs can both negotiate the risks relevant to a research application and also work with researchers to get to a point where the application can be deemed ethically acceptable?
  • What range of actors needs to be involved, with which responsibilities, and towards which ends?
  • How might a regulatory deliberative space be protected to capture and promote the fluid, processual nature of REC deliberations and effective health research regulation? 
Research from the University of Edinburgh’s Liminal Spaces Project suggests that regulatory stewardship involves different actors—RECs and others involved in the regulation of health research—helping researchers and sponsors navigate complex regulatory pathways and work through the thresholds of regulatory approvals. Collective responsibility, as a component of regulatory stewardship, requires relevant actors to work together to design and conduct research that is ethical and socially and scientifically valuable and that ultimately aims to improve human health. This can only be accomplished if a framework delineates how and when regulators and regulatees should communicate with one another and makes clear who has what responsibility and role to be played (if any) at each stage in the research lifecycle.

To this end, in this roundtable we considered whether a regulatory framework for health research could identify different kinds of stewards with distinct roles, such as state stewards, institutional stewards, operational stewards and ethics stewards. If so, seen in this way, the example of the REC would serve as an illustration of a potentially much wider contribution to policy, regulation, law, and theory in the health research context. 

Using hexagon shapes to thematically group responses to several high-level questions posed to them (see the photo below), roundtable participants helped identify the key challenges and opportunities associated with regulatory stewardship. For example, several participants commented on the difficulty in teasing out the conceptual and practical difference between stewardship and gatekeeping, and considered whether there are aspects of health research regulation that can be researched more in-depth to see whether stewardship is observed or can be implemented as a pilot project. Participants also discussed the link between stewardship and proportionality: stewardship is partially about streamlining regulatory pathways, helping to avoid researchers and sponsors and getting bogged down in unnecessary paperwork or duplicative processes.
Overall, participants were enthused by the day-long discussion and the potentially beneficial impact of regulatory stewardship in health research. The immediate next step for our roundtable group is to construct a short policy brief that will chart the ways in which regulatory stewardship might be implemented in health research. Once finalised, as with the forthcoming roundtable report, it will be publicly disseminated on the Mason Institute website.

The roundtable participants acknowledge and thank Wellcome for funding the roundtable through a Senior Investigator Award entitled “Confronting the Liminal Spaces of Health Research Regulation” (Award No: WT103360MA), and the College of Arts, Humanities and Social Sciences at the University of Edinburgh for supporting the roundtable through funding from a Knowledge Exchange and Impact Grant.




26 April 2019

The Dissection of Medical Dramas: 19th February 2019


by Zahra Jaffer and Lynn Kennedy

As part of the Festival of Creative Learning (FCL), we hosted the event: The Dissection of Medical Dramas. This interactive workshop used popular television medical dramas and role-play to identify and discuss the relevant ethical issues that arise in the medical context. The workshop specifically focused on issues of consent and the provision of treatment.

Our aim in organising this event was to introduce participants to issues of medical law and ethics in an interactive and accessible manner. In the first segment of the event, we used clips from popular television series such as Grey's Anatomy, Chicago Med and Scrubs to identify and discuss a wide range of issues, such as, the refusal of treatment in late pregnancy, Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) orders and treatment of patients with body dysmorphic disorder. The role-play segment was designed in a way that required participants to use the skills and information they learned from the first segment to identify and discuss issues in the role-play segment. We used television medical dramas and role-play because these mediums are easily accessible and engaging methods that would allow us to provide a fun and interactive workshop that would appeal to a wide audience. By using these mediums, we were celebrating creative learning methods, which was in line with the spirit of FCL.

There were three key points that we wanted participants to take away from our event:
1.     A competent adult’s right to refuse medical treatment and the evolving approach to a pregnant woman’s right to refuse treatment
2.     The differences in the approaches to consent and refusal of treatment in relation to children and mature minors
3.     Issues relating to when advance decisions are upheld

We raised these issues by showing participants relevant clips from the television series and then we asked their opinions regarding them. We developed the discussions further by using a number of methods, such as by positing ‘what if’ questions or by first discussing the legal position on the matter and then asking participants for their views on the position. The participants were very engaged and we had some illuminating discussions on the various issues raised, such as:

1.     Questions regarding the cessation of treatment versus actively bringing about the death of the patient in context of withdrawal of life support from a braindead patient. In turn, this raised questions concerning euthanasia and the distinction between acts and omissions.

2.     In relation to a pregnant woman’s right to refuse treatment, a participant observed that by not giving a pregnant woman the same rights as any other competent adult to refuse treatment, we would be limiting the woman’s autonomy and would be attempting to give legal rights to a foetus.

3.     In relation to the consent to treatment in the cases of children, participants raised the topical issue of vaccination. One of the participants pointed out that in Greece, parents have no legal authority to refuse to vaccinate their children. We were therefore able to learn about the approach of other jurisdictions on the matter.

We were very pleased to have such a good turnout and a highly engaged audience that raised thought-provoking discussions. The feedback from the event was positive, which suggests that the University of Edinburgh student community has interest in medical law and ethics issues and discussing this in an interactive, media-supported manner. Since this event was designed to aid learning in the area of medical law and ethics, we were delighted to see that all participants who provided feedback gave the event a high score on its usefulness, and that all stated that they learnt something new and that they would recommend the event to others. Overall, this has been a wonderful and a highly rewarding experience.

22 March 2019

Criminalizing medical research fraud: Towards an appropriate legal framework and policy response


Blog post by Gilberto Leung

When hunting for a topic for my Dissertation, I went from ‘research ethics’ to ‘research misconduct’ and eventually cases of medical research fraud that had been treated criminally in the US. Although there have also been calls for greater criminalization in the UK, little has been written about how the criminal law may actually be applied in this context. People were saying we should probably prosecute researchers such as Wakefield but no one seemed to know or wanted to know how to go about it. I thought I would examine the knowledge gap.

What I found was that the Fraud Act 2006 would work very well in dealing with MRF but it casts such a wide net that many ‘minor’ cases would also be caught. The main issue in front of me then was about determining the appropriate threshold for prosecution in something as complex as research fraud. I borrowed the concept of the CPS policy on assisted suicide and proposed a balance sheet approach. Together with some amateur work on actus reus and mens rea, I ended up with a (kind of) legal framework to complement the Fraud Act. In retrospect, it was a brave/mad move to dive into criminal law just like that but my supervisor (Professor Graeme Laurie) was extremely helpful and encouraging. Not sure if the government would listen to me but I am glad that the Dissertation got a prize and I shall always be grateful for the wonderful learning experience.

Please, access the article by following:


View other publications by Gilberto on the Mason Institute website.

1 March 2019

The sixth annual ‘Great Medico-Legal Debate’: 21 February 2019



After five successful previous installments, the sixth annual ‘Great Medico-Legal Debate’ was held on 21 February 2019 at the University of Strathclyde. This was the first time that Strathclyde hosted this annual event, which explores the arguments on both sides of a current and exciting medical law and ethics topic.

This year’s debate topic concerned whether the best interests test regarding care of children should be reformed. As demonstrated by the recent high-profile media cases of Charlie Gard and Alfie Evans, there have been ongoing questions around whether the best interests test is fit for purpose in an era of increasing importance of patient and parental autonomy. Teams were divided into ‘Team for reform’ and ‘Team against reform’ and a wide audience attended, both from within and beyond the academy.

In a lively debate, the two teams considered issues of issues of human rights, medical ethics, and public policy arising over changes to the judicial test. Audience members were asked to consider and vote on the issue, after a brief introduction to the topic by the co-Director of the Mason Institute, Dr Agomoni Ganguli-Mitra. After arguments took place, audience members were asked to consider their stance and vote once more on whether the best interests test should indeed be reformed, in light of the debate that took place. Ultimately, after a close competition, the invited expert judge, Professor Alison Britton of Glasgow Caledonian University, decided in favour of ‘Team again reform’. Audience members’ voting also reflected this view that, while the application of the best interests test remains vexed, it has the advantage of providing what Professor Britton described as an ‘end point’. She praised the proposals for reform that had been argued for including alternative methods for dispute resolution between doctors and parents and models based on consensus building rather than a ‘test’. However, as Professor Britton underlined, the need for decisions to be made promptly and for such decisions to be final is particularly pressing in the context of a gravely ill child. As such, it was this consideration that ultimately swayed her finely balanced decision.
  
After six events, the ‘Great Medico-Legal Debate’ continues to deliver thoughtful and in-depth coverage of pressing issues in law and medical ethics, in a creative and stimulating format. Indeed, Professor Britton remarked upon the exceptional skills of the debate teams, who not only explored the topic of medical futility and the best interests test in detail, but also showcased their skills in legal research and argumentation.


We would like to say a huge thank you to everyone who made this year’s debate such a success, including our expert Judge, Professor Britton; our host at Strathclyde, Dr Mary Neal; the audience members who attended and participated so enthusiastically; and, most of all, the members of the debate teams, who gave up their own time to prepare for the debate and delivered such an excellent performance on the day. We look forward to continuing the seventh installment of the debate in 2020, and further building our medical law and ethics collaboration with universities across Scotland.

1 February 2019

Social Norms and Health: is a cross-disciplinary vision possible?


Shared ideas about how we should behave have an important influence on our health. How we maintain our appearance, what we eat, how we move around our neighbourhoods and what we do to look after ourselves when we are ill, are all affected by ideas about what is appropriate behaviour. This will vary considerably depending on, amongst other things, our age, ethnicity, gender, religion and social status. Such matters of individual preference are shaped by the ideas of those around us – by our parents, teachers, friends and neighbours. Such conventions are not formal rules, like laws or regulations, and so going against them may, at times, result in little more than social awkwardness, but they nevertheless, shape our behaviour. In other cases, social norms may be so strongly entrenched that flouting or ignoring them might come at great cost.

Sociologists and social psychologists often refer to such informal conventions as ‘social norms’. One sociologist defined a norm as: ‘a statement specifying how a person is, or persons of a particular sort are, expected to behave in given circumstances – expected, in the first instance, by the person that utters the norm. What I expect of you is what you ought to do.’ [1]

This definition raises questions about the dual aspects of norms. On the one hand a norm can describe what a particular kind of person might do, an average response to a specific situation. But norms also have a prescriptive aspect – a norm is not just an average response, but how a person is supposed to behave in given circumstances. To make this distinction clear, some authors reserve the term ‘social norm’ for these prescriptive (‘normative’) expectations, and use the term ‘descriptive norm’ for other less demanding requirements.[2] However, whether individuals’ behaviour corresponds to any set of expectations is always an open question that needs empirical investigation.   

As a bioethicist and a sociologist interested in the ethics of public health, we think that norms may provide additional description and explanation of people’s health-related behaviours to those used in current health policy. Neither approaches which explain everything in terms of individual choice (ignoring the contexts in which those choices are made), nor those that see individuals as blindly responding to their environments seem entirely satisfactory. Thinking about the operation of social norms in relation to health allows us to develop better understandings of people’s behaviour, and explain how certain behaviours are important to our identities.

In order to develop these ideas further we organised an interdisciplinary workshop in early September 2019. Our participants included ethicists, psychologists and social scientists. These researchers presented their work on topics such as the cost of beauty practices, healthy eating behaviour, public health campaigns on anti-microbial resistance, toilet use and vaccination refusal. Over two days we listened to this diverse and very rich range of collection of case studies and discussed our very different theoretical approaches to norms. As with many interdisciplinary conversations, one early challenge was to be clear about the terms we were using – including what we meant by the term ‘norm’. We also found that some disciplines allow researchers to develop strongly normative conclusions, whereas in other areas description is much more highly valued.

At the end of the event we felt like we had only just begun to address a complex topic and were left with a series of questions for further investigation. These include:

  • Given that various disciplines define and approach social norms differently, how do we achieve cross-disciplinary dialogue?
  • To what extent should we take a critical or normative approach to social norms?
  • When and how do norms change, and can we direct these processes?
  • Should we design public interventions that work with existing norms? Or, should we also aim at changing them?
  • What happens when norms conflict?

[1] George Homans (1974) Social Behavior: its elementary forms (2nd edition) (New York: Harcourt, Brace & World).
[2] Christina Bicchieri (2017) Norms in the Wild: How to Diagnose, Measure, and Change Social Norms (Oxford: Oxford University Press)