To succeed, this will necessarily require lawyers to be a part of the armies of architects and builders to construct it, and they will need to have learned important lessons from the pandemic in terms of both professional skills and the values that they bring to their work.
For my students on the University of Kent’s new postgraduate pathway in Law and Health, the pandemic has meant virtual classrooms, heavy utilisation of online resources, and the adoption of a more solitary style of learning. Students needed to demonstrate flexibility, resilience, and solid hard work: one has woken up before 4 am every week to join the class from Canada; another negotiated complex logistical challenges to reach Canterbury from Botswana. Together, we have worked through issues of buffering, crackling microphones, and the occasional unexpected appearance onscreen of passing cats or small children. Often more adept at manipulating the necessary technology than their lecturers, students also brought expectations of how to work together effectively online. All of this will colour how they approach their future careers. When they graduate, they will encounter a professional world in which remote-working has moved to the mainstream, offering new possibilities and challenges in securing precious first jobs as physical location becomes a less important criterion for selection panels deciding upon the best candidate.
Lawyers have played a key role in our response to the pandemic
In this rapidly changing professional and legal landscape, the best responses have come from those able to adapt quickly and creatively both to their own working conditions and the rapidly evolving legal landscape. Many practicing lawyers have pivoted on the head of a pin, moving first to home working and then, for some, to virtual courtrooms. Lawyers have played a key role in our response to the pandemic: it is difficult to overstate the Herculean task involved in drafting, within weeks, the 348-page Coronavirus Act 2020, complete with its 29 schedules making provision for everything from residential tenancies, the use of video links in legal proceedings, and temporary registration of health workers. Others have been involved in the response to the ravages wreaked by the long weeks of lockdown: the rising numbers of claims of domestic violence and child abuse; the beginnings of greater numbers of divorce proceedings; and the rising numbers seeking to write wills[1]. Lawyers have worked to protect prisoners’ rights[2]; anticipated and mitigated against post-pandemic corporate litigation[3]; negotiated difficult disputes between landlords and tenants unable to pay rent[4]; and, grappled with many complex issues of banking, contract and insurance law[5].
Lawyers have also played an important role in challenging the Government’s response to the pandemic, with such robust scrutiny an essential part of any healthy democracy. Former Supreme Court Judge, Jonathan Sumption has led criticisms of potential overreach in the policing of the pandemic, warning against a potential slide into a ‘police state’[6]. Lawyers are supporting some of those who lost relatives to COVID-19 in bringing a judicial review of the policies that saw sufferers released into care homes in the early months of the pandemic[7]. Others are scrutinising alleged procedural irregularities in the procurement of essential medical supplies[8].
A shocking 95% of the doctors to die so far during the pandemic have been from Black, Asian or Mixed Ethnicity backgrounds.
The values that lawyers bring to their work also now feel all the more important. In 2020, Kent University relaunched part of our LLM programme, moving away from ‘Medical Law and Ethics’ to a broader consideration of some of the multiple intersections between ‘Law and Health’[9]. This change was inspired by the insight that health law and policy cannot be fully understood in isolation from axes of inequality and discrimination, with our new pathway allowing us to embed a pervasive concern for social justice. Alongside modules that consider the regulation of healthcare practice and healthcare ethics, we included others that focused on health, poverty and social inequality, and healthcare law and ethics understood in its global context.
At the time we were planning these changes, they felt like a new and radical departure from Medical Law, which has traditionally defined its own boundaries far more narrowly. In a post-COVID world, it feels difficult to imagine doing things differently. While politicians were telling us that we were ‘all in this together’, it was quickly evident that the effects of both the disease and the measures taken to mitigate its effects were falling disproportionately. COVID-19 has impacted most harshly on the already vulnerable: the elderly, those with disabilities and existing co-morbidities, those living in cramped and insanitary housing conditions, those working in front-line jobs unable to switch to home-working, and those in less wealthy regions of the UK. Most strikingly, race emerged as a powerful independent indicator of the likelihood of both contracting and dying from COVID-19. All-cause mortality during the pandemic has been almost four times higher than expected among Black men (compared to almost double in White men) [10]. A shocking 95% of the doctors to die so far during the pandemic have been from Black, Asian or Mixed Ethnicity backgrounds[11].
In order fully to understand how law and policy intersect with health, students must first be aware of these harsh realities of disadvantage and discrimination.
Public Health England’s attempt to understand these racial disparities suggests that they reflect a number of factors ranging from social and economic inequalities, racism, discrimination and stigma, occupational risk, and inequalities in the prevalence of conditions that increase the severity of disease (including obesity, diabetes, cardiovascular disease and asthma) [12]. In attempting to understand the disproportionate number of deaths amongst BAME doctors, the British Medical Association found inter alia that these doctors were less confident about PPE provision, felt less safe to report PPE shortages, and were more likely to report bullying and harassment during the pandemic. For those of us shocked by these findings, this can only suggest that we had previously chosen not to look at the abundant evidence already available regarding racial inequalities in health. To take a single, particularly shocking and widely reported statistic: a Black woman in the UK is five times more likely to die as a result of complications surrounding pregnancy and childbirth than is a White one[13]. In order fully to understand how law and policy intersect with health, students must first be aware of these harsh realities of disadvantage and discrimination.
Sir Michael Marmot is a Professor of Epidemiology at University College London, Director of the UCL Institute of Health Equity, and Past President of the World Medical Association. His landmark report, Fair Society, Healthy Lives, was recently voted by public health experts to be the third most important public health achievements of the 21st century (being beaten only by the ban on smoking in public spaces and the levy on sugar in soft drinks) [14]. In it, he explained:
People with higher socioeconomic position in society have a greater array of life chances and more opportunities to lead a flourishing life. They also have better health. The two are linked: the more favoured people are, socially and economically, the better their health. This link between social conditions and health is not a footnote to the ‘real’ concerns with health – health care and unhealthy behaviours – it should become the main focus.
In February 2020, Marmot’s co-authored follow-up report made depressing reading, demonstrating that the previous steady increase in life expectancy had stalled. Indeed, improvements had reversed for the poorest 10% of women; and the health gap had grown between wealthy and deprived areas to the extent that life expectancy is nearly five years less in a deprived area of the North East than in a similarly deprived area of London[15].
Such an uprising will necessarily depend heavily on the work of lawyers, who must bring not just agility and resilience to their work, but also clear ethical values and a strong personal commitment to fighting social injustice.
Marmot also set out a framework for action under two policy goals: to create an enabling society that maximises individual and community potential, and to ensure that social justice, health and sustainability are at the heart of all policies. The legacy of the pandemic must be a strong recommitment to these goals, with Marmot’s recommendations a crucial reference point in a collective effort to build a better, fairer, and sustainable future. Marmot was driven by a simple mission: that ‘health inequalities that could be avoided by reasonable means are unfair. Putting them right is a matter of social justice’. He began his 2010 report by quoting Pablo Neruda’s call to ‘rise up with me against the organisation of misery’. Such an uprising will necessarily depend heavily on the work of lawyers, who must bring not just agility and resilience to their work, but also clear ethical values and a strong personal commitment to fighting social injustice. My experience with my own students gives me hope that they will rise to this challenge.
Professor Sally Sheldon, Professor of Law, Kent Law School, University of Kent
Professor Sheldon's research interests are primarily in health care law and ethics and she has published widely in this area. In 2017, Sally was elected as a Fellow of the Academy of Social Sciences, in recognition of her pioneering socio-legal research, particularly in the area of abortion law.
[1] https://www.lawyer-monthly.com/2020/09/demand-for-divorce-and-will-writing-surges-during-pandemic/
[2] https://www.lawyer-monthly.com/2020/04/protecting-prisoners-rights-during-this-pandemic/
[3] https://www.lawyer-monthly.com/2020/08/protecting-against-post-pandemic-corporate-disputes/
[4] https://www.lawyer-monthly.com/2020/07/how-does-the-covid-19-pandemic-affect-landowners-and-rental-property-owners/
[5] https://www.lawyer-monthly.com/2020/05/coronavirus-law-how-will-the-pandemic-shape-english-law/
[6] https://www.bbc.co.uk/news/uk-england-derbyshire-52095857
[7] https://blmhealthandcareblog.com/2020/11/20/high-court-gives-permission-for-judicial-review-into-care-home-policies-taken-at-start-of-pandemic/
[8] https://goodlawproject.org/case/procurement-case/
[9] https://www.kent.ac.uk/news/society/25393/law-school-launches-masters-in-law-and-health-with-pandemic-focus
[10] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/908434/Disparities_in_the_risk_and_outcomes_of_COVID_August_2020_update.pdf
[11] https://www.bma.org.uk/advice-and-support/covid-19/your-health/covid-19-the-risk-to-bame-doctors
[12] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/892376/COVID_stakeholder_engagement_synthesis_beyond_the_data.pdf
[13] https://www.npeu.ox.ac.uk/downloads/files/mbrrace-uk/reports/MBRRACE-UK%20Maternal%20Report%202018%20-%20Web%20Version.pdf
[14] https://www.rsph.org.uk/about-us/news/top-20-public-health-achievements-of-the-21st-century.html
[15] https://www.health.org.uk/publications/reports/the-marmot-review-10-years-on
