528
industry has actually benefited from that well-intended law. Before its passage the equal-time requirement of the Federal Communications Commission provided the threadbare anti-tobacco forces with free time for countermessages. When the paid advertisements stopped, so did the free negative messages. But that hasn’t kept tobacco off the air. Banned from direct broadcast advertising, the cigarette firms have bought up billboards at every major sports stadium, so that any televised contest is visually inseparable from cigarette advertising. The companies also sponsor major sporting events, to which their names and messages are conspicuously attached-eg, the Virginia Slims Tennis Tournament. The Federal Government has tolerated these crafty techniques, while, by federal statute-lovingly pushed by the tobacco industry-the states are precluded from regulating cigarette advertising. As Dr Sullivan and his Congressional allies bemoan the health effects of tobacco, other branches of the US Government are energetically promoting the export of cigarettes, one of the few remaining products in which US manufacturers are gaining world markets. This growth, important for the companies as the domestic market shrinks, is striking. American cigarette sales to Japan grew from$76 million in 1985 to$606 million in 1988. In the same period, sales to Taiwan rose from$4-6 million to$119 million; to South Korea, from$2-1 million to$56 million. All in all, cigarette sales abroad earned$2-6 billion for American firms in 1988, up from$11billion in 1984. The quality and cachet of American smokes helped expand those markets, but the main force has come from White House threats to invoke retaliatory trade measures against nations that exclude American cigaretttes. As has often been noted, to the point of tiresomeness, the loss of life and health from cocaine and other drugs is minusculebycomparison with the hundreds of thousands of deaths and infirmities caused by legal smoking. Yet Washington spends billions against drugs, and virtually nothing to prevent smoking, and even a good deal to encourage it. There is little purpose in belabouring the irrationality of these practices. They are well known, well understood, and extremely durable.
Daniel S.
Greenberg
Round the World USA: Environmental staff
manoeuvres
President Bush’s plan to promote his environmental chief, Mr William Reilly, to his cabinet conforms nicely to the image he seeks to project as an environmental president. It would be rash, however, to read into this any new resolve to accelerate the campaign against polluters that badly lagged in the Reagan years. The men and women around Mr Bush, like Mr Reagan’s staff, look to corporations as a prime constituency. Mr Bush himself, a patrician from New England, spent happy years as a Texas oil entrepreneur before making government his career. Accordingly, with one exception, Mr Bush has done little to offend the business executives who complain about costly environmental regulations. The one big Bush move that brought applause from environmentalists was his legislative
proposal to control acid rain. Otherwise, there have been signs at the White House of environmental retreat. In early February, the president’s chief of staff, Mr John Sununu, softened Mr Bush’s speech on global warming and weakened an agreement to protect the nation’s wetlands, which developers and farmers are destroying at a distressing clip. It is probably Mr Sununu, not Mr Reilly, who more accurately reflects Mr Bush’s ideology. A former governor of New Hampshire, Mr Sununu was an ardent promoter of nuclear power and the development of his beautiful state for vacation condominiums. After the mammoth oil spill at Valdez, Alaska, last March, according to Maurine Dowd, a reporter for the New York Times, he chided the press for focusing on the spill. He thought that they should have stressed the bulk of the oil that was kept on the ship. So long as he remains in daily consultation with Mr Bush, calling Mr Reilly Secretary of the Environment instead of administrator of the Environmental Protection Agency is not going to make the air and water any cleaner. J. B. Sibbison
Amherst, MA
Medicine and the Law NHS reforms: doctor’s legal
challenge fails
On the morning of Feb 21, in the grandeur of the Lord Chief Justice’s court in the Strand, London, there was a scramble for copies of the Divisional Court’s 22-page judgment on Prof Harry Keen’s application for a judicial review relating to the Government’s National Health Service reforms.1 Backed by /;250 000 and some 300 NHS consultants who are unconvinced by the white-paper’s proposals, Professor Keen had contended that the spending of some 80 million in preparation and anticipation of the white-paper reforms was ultra vires-ie, beyond the powers of the Secretary of State for Health and the health authorities. Keen and his supporters particularly object to the large sums expended with a view to the creation of NHS hospital trusts intended to run self-governing hospitals. His lawyers pointed out that such trusts were a novel species in law and argued that the Government and regional and district health authorities were distorting the legislative process "by having a period of gestation before conception instead of the period of gestation following conception as nature requires". Lawyers for the Secretary of State and the health authorities predictably argued that everything had been done intra vires. It was not only lawful but also good administration for preparatory steps to be taken in the context of the National Health Service and Community Care Bill now before Parliament. Dismissing the application, Lord Justice Woolf, an expert in administrative law, said that the applicant’s "attractive" submission asked the question: "Is this a situation where the Government cannot lawfully expend large sums of public money on the making of preparations for the implementation of a Bill before it becomes law without having legislation to authorise the expenditure?" After construing the 1977 National Health Service Act and 1989 regulations made under that Act, Lord Justice Woolf had no doubt that the Government did have such wide powers though he expressed no enthusiasm for them. He said:
529
"Although initially it does appear surprising that large sums of money and considerable resources can be expended in anticipation of legislation, where the existing powers of the Secretary of State and the authorities are as wide as they are here, there is nothing to prevent the authorities choosing to make the preparations necessary to prepare for that legislation." Mr Justice Pill agreed. The court held that while the Secretary of State does not have the power to approve an application for NHS trust status for a hospital in anticipation of the Bill becoming law, he and the health authorities can deploy resources under their existing powers to enable the necessary steps to be taken to prepare an application. The lawyers acting for the Secretary of State had relied on the wide general duty contained in sl(l) of the 1977 Act to promote "a comprehensive health service designed to secure the improvement-(a) in the physical and mental health of the people of those countries, and (b) in the prevention, diagnosis and treatment of illness, and for that purpose to provide or secure the effective provision of services in accordance with this Act". Lord Justice Woolf said that the words "in accordance with this Act" should be read so as to govern "the effective provision of services" and not the whole of subsection 1. The comma after the word "illness" was, he said, significant and meant that "it is only the provision of services which are to be ’in accordance with this Act"’. The Secretary of State’s duty to promote a comprehensive service was not confined by the words "in accordance with this Act". The Secretary of State’s powers of delegation gave him power to provide services either directly or via arrangements with the health authorities. After the judgment, while Professor Keen conferred with his legal advisers in the Gothic corridors of the courts, Robin Cook, MP (Labour shadow minister for health), standing only a few feet away, was quick to make what political capital he could in a brief interview to the press. However, the 1977 Act was introduced by a Labour government, and doubtless supported by Keen’s solicitor, Mr Bruce Douglas-Mann, who himself was once a Labour MP. Professor Keen said that he was disappointed but that the result was "predictable" because one was "taking on the might of the State"-a more realistic view than before Christmas, when he told me that his case was overwhelming and his senior counsel quipped that he looked forward to reading my account of their victory. Keen was fighting for a principle-"Principles are so important, don’t you think?" Principles are also expensive. The costs incurred so far are about C90 000 for which he and his supporters’ fund will be liable. An appeal is being considered.
The financial and moral support pledged by NHS consultants for this application gives some indication of their dissatisfaction. Well-founded misgivings about the whitepaper have been brushed aside or ignored completely. Doctors who believe in the NHS and fear for its future as laid out in the white-paper need to convince Parliament. In my view it was doubtful whether the most effective means of defending a principle (the NHS) was to be found in an application for judicial review when the Government’s powers are so widely drawn by statute. In Scotland, however, there may be more scope for legal challenge. Mr Drummond Hunter, chairman of Gogarbum Hospital Voluntary Associationhas exhorted members of the national consultative committees of the health-care professions in Scotland-which, he alleges, were unlawfully abolished by the Scottish Health Minister-to fulfil their statutory obligation to offer advice to the Government about the Bill. R v Secretary of State for Health, South East Thames Regional Health Authority, Lewisham and North Southwark District Health Authority ex parte Harry Keen. Divisional Court: Woolf L_7 and Pill _7, Feb 21, 1990. Diana Brahams 1. Brahams D. NHS reforms: a legal challenge. Lancet 1989; ii: 1347. 2. Hunter D. Illegal acts of Scottish Health Minister. Lancet 1990; 335: 414.
Heat illness in the
Navy
On Feb 21, 1990, a 36-year-old Royal Navy lieutenant (an ex-marine) instructor was found guilty by a court-martial of ill-treating an officer who collapsed from heat illness during a training exercise last July.1 The instructor was dismissed from his ship (the RN Survival Equipment School) but will remain in the Navy. An eye-witness to the incident was appalled by the instructor’s behaviour. The officer was clearly disoriented and very ill but he was grabbed by the hair and punched and then left to lie in the sun for half an hour until help was summoned. Although it has never been alleged that the physical ill-treatment caused the man’s brain damage,l the delay may well have been highly material in the long term.
The court-martial revealed that the officer had failed a medical three times and was overweight, factors which the instructor said he did not know and which would have made him doubt the man’s capacity to undertake the demanding course. One is left with the impression that the instructor has been made a scapegoat, and that others should also have been called to account. The instructor’s behaviour was ignorant and brutal but I suspect that it was regarded as par for the course by those ultimately responsible for training schedules. If the purpose of the medical examinations was to assess his fitness and suitability for training, why was the man included in a gruelling training course? Why did the instructor not know of this lack of fitness and why was he unable to recognise the obvious signs of heatstroke? Following the death of a police cadet from heat illness in Massachusetts, the inquest judge said that there was a chain of responsibility for the incident, starting with the executive director and moving down to instructors on the ground.’ In this case, the buck stopped well short of the higher echelons. The Ministry of Defence has been at pains to reassure the public and has stated that changes have been introduced since this incident, which happened during the fourth day of an exercise in which 18 trainees were living off the land, after supposedly having been shot down behind enemy lines. The changes are reportedly intended to improve on-the-spot medical treatment and included better first-aid training for instructors, better medical evacuation, and the issuing of portable telephones to supervisors.2 test
Mr Jack Ashley, MP, who has taken a keen interest in heatstroke in the armed forces, has called for publication of internal inquiries into the 12 deaths and 663 injuries arising from heatstroke in servicemen over the past ten years. It is depressing to record that towards the end of 1989 I was telephoned by a hospital doctor who told me of another recent and fatal incident in the Irish navy. Mr Ashley wants automatic courts-martial for officers responsible for training in which there is death or serious injury, but this seems unrealistic. However, an automatic inquiry to which the public and press had the right to be admitted would seem appropriate. The availability of a civil suit in negligence against the armed forces, particularly when coupled with the effect of the recent ruling by Popplewell y that there should be no immunity for a naval inquiry report,s is likely to force greater openness from the armed forces.
Diana Brahams
1. Brahams D. Avoidable heatstroke in the armed forces. Lancet 1989; ii: 389. 2. Sapsted D. Instructor is found guilty of ill-treating officer on exercise. Times, Feb 22, 1990. 3. Brahams D. Death of a soldier: accident or neglect? Lancet 1988; i: 485. 4. Brahams D. Heatstroke in training: a fatal case in Massachusetts. Lancet 1989; ii: 1167. 5. Anon. Barrettv Ministry of Defence. Times, Jan 24, 1990.
industry has actually benefited from that well-intended law. Before its passage the equal-time requirement of the Federal Communications Commission provided the threadbare anti-tobacco forces with free time for countermessages. When the paid advertisements stopped, so did the free negative messages. But that hasn’t kept tobacco off the air. Banned from direct broadcast advertising, the cigarette firms have bought up billboards at every major sports stadium, so that any televised contest is visually inseparable from cigarette advertising. The companies also sponsor major sporting events, to which their names and messages are conspicuously attached-eg, the Virginia Slims Tennis Tournament. The Federal Government has tolerated these crafty techniques, while, by federal statute-lovingly pushed by the tobacco industry-the states are precluded from regulating cigarette advertising. As Dr Sullivan and his Congressional allies bemoan the health effects of tobacco, other branches of the US Government are energetically promoting the export of cigarettes, one of the few remaining products in which US manufacturers are gaining world markets. This growth, important for the companies as the domestic market shrinks, is striking. American cigarette sales to Japan grew from$76 million in 1985 to$606 million in 1988. In the same period, sales to Taiwan rose from$4-6 million to$119 million; to South Korea, from$2-1 million to$56 million. All in all, cigarette sales abroad earned$2-6 billion for American firms in 1988, up from$11billion in 1984. The quality and cachet of American smokes helped expand those markets, but the main force has come from White House threats to invoke retaliatory trade measures against nations that exclude American cigaretttes. As has often been noted, to the point of tiresomeness, the loss of life and health from cocaine and other drugs is minusculebycomparison with the hundreds of thousands of deaths and infirmities caused by legal smoking. Yet Washington spends billions against drugs, and virtually nothing to prevent smoking, and even a good deal to encourage it. There is little purpose in belabouring the irrationality of these practices. They are well known, well understood, and extremely durable.
Daniel S.
Greenberg
Round the World USA: Environmental staff
manoeuvres
President Bush’s plan to promote his environmental chief, Mr William Reilly, to his cabinet conforms nicely to the image he seeks to project as an environmental president. It would be rash, however, to read into this any new resolve to accelerate the campaign against polluters that badly lagged in the Reagan years. The men and women around Mr Bush, like Mr Reagan’s staff, look to corporations as a prime constituency. Mr Bush himself, a patrician from New England, spent happy years as a Texas oil entrepreneur before making government his career. Accordingly, with one exception, Mr Bush has done little to offend the business executives who complain about costly environmental regulations. The one big Bush move that brought applause from environmentalists was his legislative
proposal to control acid rain. Otherwise, there have been signs at the White House of environmental retreat. In early February, the president’s chief of staff, Mr John Sununu, softened Mr Bush’s speech on global warming and weakened an agreement to protect the nation’s wetlands, which developers and farmers are destroying at a distressing clip. It is probably Mr Sununu, not Mr Reilly, who more accurately reflects Mr Bush’s ideology. A former governor of New Hampshire, Mr Sununu was an ardent promoter of nuclear power and the development of his beautiful state for vacation condominiums. After the mammoth oil spill at Valdez, Alaska, last March, according to Maurine Dowd, a reporter for the New York Times, he chided the press for focusing on the spill. He thought that they should have stressed the bulk of the oil that was kept on the ship. So long as he remains in daily consultation with Mr Bush, calling Mr Reilly Secretary of the Environment instead of administrator of the Environmental Protection Agency is not going to make the air and water any cleaner. J. B. Sibbison
Amherst, MA
Medicine and the Law NHS reforms: doctor’s legal
challenge fails
On the morning of Feb 21, in the grandeur of the Lord Chief Justice’s court in the Strand, London, there was a scramble for copies of the Divisional Court’s 22-page judgment on Prof Harry Keen’s application for a judicial review relating to the Government’s National Health Service reforms.1 Backed by /;250 000 and some 300 NHS consultants who are unconvinced by the white-paper’s proposals, Professor Keen had contended that the spending of some 80 million in preparation and anticipation of the white-paper reforms was ultra vires-ie, beyond the powers of the Secretary of State for Health and the health authorities. Keen and his supporters particularly object to the large sums expended with a view to the creation of NHS hospital trusts intended to run self-governing hospitals. His lawyers pointed out that such trusts were a novel species in law and argued that the Government and regional and district health authorities were distorting the legislative process "by having a period of gestation before conception instead of the period of gestation following conception as nature requires". Lawyers for the Secretary of State and the health authorities predictably argued that everything had been done intra vires. It was not only lawful but also good administration for preparatory steps to be taken in the context of the National Health Service and Community Care Bill now before Parliament. Dismissing the application, Lord Justice Woolf, an expert in administrative law, said that the applicant’s "attractive" submission asked the question: "Is this a situation where the Government cannot lawfully expend large sums of public money on the making of preparations for the implementation of a Bill before it becomes law without having legislation to authorise the expenditure?" After construing the 1977 National Health Service Act and 1989 regulations made under that Act, Lord Justice Woolf had no doubt that the Government did have such wide powers though he expressed no enthusiasm for them. He said:
529
"Although initially it does appear surprising that large sums of money and considerable resources can be expended in anticipation of legislation, where the existing powers of the Secretary of State and the authorities are as wide as they are here, there is nothing to prevent the authorities choosing to make the preparations necessary to prepare for that legislation." Mr Justice Pill agreed. The court held that while the Secretary of State does not have the power to approve an application for NHS trust status for a hospital in anticipation of the Bill becoming law, he and the health authorities can deploy resources under their existing powers to enable the necessary steps to be taken to prepare an application. The lawyers acting for the Secretary of State had relied on the wide general duty contained in sl(l) of the 1977 Act to promote "a comprehensive health service designed to secure the improvement-(a) in the physical and mental health of the people of those countries, and (b) in the prevention, diagnosis and treatment of illness, and for that purpose to provide or secure the effective provision of services in accordance with this Act". Lord Justice Woolf said that the words "in accordance with this Act" should be read so as to govern "the effective provision of services" and not the whole of subsection 1. The comma after the word "illness" was, he said, significant and meant that "it is only the provision of services which are to be ’in accordance with this Act"’. The Secretary of State’s duty to promote a comprehensive service was not confined by the words "in accordance with this Act". The Secretary of State’s powers of delegation gave him power to provide services either directly or via arrangements with the health authorities. After the judgment, while Professor Keen conferred with his legal advisers in the Gothic corridors of the courts, Robin Cook, MP (Labour shadow minister for health), standing only a few feet away, was quick to make what political capital he could in a brief interview to the press. However, the 1977 Act was introduced by a Labour government, and doubtless supported by Keen’s solicitor, Mr Bruce Douglas-Mann, who himself was once a Labour MP. Professor Keen said that he was disappointed but that the result was "predictable" because one was "taking on the might of the State"-a more realistic view than before Christmas, when he told me that his case was overwhelming and his senior counsel quipped that he looked forward to reading my account of their victory. Keen was fighting for a principle-"Principles are so important, don’t you think?" Principles are also expensive. The costs incurred so far are about C90 000 for which he and his supporters’ fund will be liable. An appeal is being considered.
The financial and moral support pledged by NHS consultants for this application gives some indication of their dissatisfaction. Well-founded misgivings about the whitepaper have been brushed aside or ignored completely. Doctors who believe in the NHS and fear for its future as laid out in the white-paper need to convince Parliament. In my view it was doubtful whether the most effective means of defending a principle (the NHS) was to be found in an application for judicial review when the Government’s powers are so widely drawn by statute. In Scotland, however, there may be more scope for legal challenge. Mr Drummond Hunter, chairman of Gogarbum Hospital Voluntary Associationhas exhorted members of the national consultative committees of the health-care professions in Scotland-which, he alleges, were unlawfully abolished by the Scottish Health Minister-to fulfil their statutory obligation to offer advice to the Government about the Bill. R v Secretary of State for Health, South East Thames Regional Health Authority, Lewisham and North Southwark District Health Authority ex parte Harry Keen. Divisional Court: Woolf L_7 and Pill _7, Feb 21, 1990. Diana Brahams 1. Brahams D. NHS reforms: a legal challenge. Lancet 1989; ii: 1347. 2. Hunter D. Illegal acts of Scottish Health Minister. Lancet 1990; 335: 414.
Heat illness in the
Navy
On Feb 21, 1990, a 36-year-old Royal Navy lieutenant (an ex-marine) instructor was found guilty by a court-martial of ill-treating an officer who collapsed from heat illness during a training exercise last July.1 The instructor was dismissed from his ship (the RN Survival Equipment School) but will remain in the Navy. An eye-witness to the incident was appalled by the instructor’s behaviour. The officer was clearly disoriented and very ill but he was grabbed by the hair and punched and then left to lie in the sun for half an hour until help was summoned. Although it has never been alleged that the physical ill-treatment caused the man’s brain damage,l the delay may well have been highly material in the long term.
The court-martial revealed that the officer had failed a medical three times and was overweight, factors which the instructor said he did not know and which would have made him doubt the man’s capacity to undertake the demanding course. One is left with the impression that the instructor has been made a scapegoat, and that others should also have been called to account. The instructor’s behaviour was ignorant and brutal but I suspect that it was regarded as par for the course by those ultimately responsible for training schedules. If the purpose of the medical examinations was to assess his fitness and suitability for training, why was the man included in a gruelling training course? Why did the instructor not know of this lack of fitness and why was he unable to recognise the obvious signs of heatstroke? Following the death of a police cadet from heat illness in Massachusetts, the inquest judge said that there was a chain of responsibility for the incident, starting with the executive director and moving down to instructors on the ground.’ In this case, the buck stopped well short of the higher echelons. The Ministry of Defence has been at pains to reassure the public and has stated that changes have been introduced since this incident, which happened during the fourth day of an exercise in which 18 trainees were living off the land, after supposedly having been shot down behind enemy lines. The changes are reportedly intended to improve on-the-spot medical treatment and included better first-aid training for instructors, better medical evacuation, and the issuing of portable telephones to supervisors.2 test
Mr Jack Ashley, MP, who has taken a keen interest in heatstroke in the armed forces, has called for publication of internal inquiries into the 12 deaths and 663 injuries arising from heatstroke in servicemen over the past ten years. It is depressing to record that towards the end of 1989 I was telephoned by a hospital doctor who told me of another recent and fatal incident in the Irish navy. Mr Ashley wants automatic courts-martial for officers responsible for training in which there is death or serious injury, but this seems unrealistic. However, an automatic inquiry to which the public and press had the right to be admitted would seem appropriate. The availability of a civil suit in negligence against the armed forces, particularly when coupled with the effect of the recent ruling by Popplewell y that there should be no immunity for a naval inquiry report,s is likely to force greater openness from the armed forces.
Diana Brahams
1. Brahams D. Avoidable heatstroke in the armed forces. Lancet 1989; ii: 389. 2. Sapsted D. Instructor is found guilty of ill-treating officer on exercise. Times, Feb 22, 1990. 3. Brahams D. Death of a soldier: accident or neglect? Lancet 1988; i: 485. 4. Brahams D. Heatstroke in training: a fatal case in Massachusetts. Lancet 1989; ii: 1167. 5. Anon. Barrettv Ministry of Defence. Times, Jan 24, 1990.
