PBL at York: Using Medical Law Module to demonstrate the advantages and loopholes of PBL used as an ‘Integrated Approach’ at York Law School

Katarzyna Gromek-Broc, Richard Hedlund

The creation of York Law School (YLS) in 2008 was an unprecedented occasion to rethink the way in which we teach and the way in which students learn. What technics do we use to maximise the students’ progress? Are they efficient and cost effective? Do they maximise the students’ potential? Do they prepare them enough for future jobs?

Designing a LLB programme from scratch was an exciting opportunity to offer a programme which is interesting, student oriented and stimulating, as well as being a programme that will increase their employability. The obvious question for the designers of the programme was to determine the principle objectives; asking “what are we trying to achieve?” Following Barrows we can argue that the objective of any Law School curriculum should be to produce a competent lawyer or a legal theorist. Therefore, the role of the designers of a new curriculum is to ask: ‘what are the characteristics of a lawyer/ legal academic the curriculum should produce?’1 The selected method of teaching and learning should emphasise the development of the skills, abilities and attitudes that would lead to a fulfilment of the initial objectives and provide a desirable final outcome.2 Having this in mind we wanted to be pioneers in the UK higher legal education offering a fresh, innovative, interactive approach to learning and teaching.

Why should we re-think our methods of teaching? The innovative technologies in the modern world, the ways we communicate and access information have changed dramatically in the last few decades. It is clear that the needs of the employment market places different responsibility on us as educators. As Duch rightly pointed out, ‘our role as educators is to prepare students to be comfortable in the new working environment’.3 The current working environment puts more and more emphasis on an inquiring approach, reasoning, asking the right questions, gathering relevant material and communicating findings effectively. Whatever discipline it is, it is often connected with other disciplines. Our students should be able to be operative in the business environment. In order to equip them with appropriate skills we need to rethink the way we teach.4 In teaching the social sciences we have probably not given enough thought to what is the method that would benefit students the most? We usually teach how we were taught.

The traditional method of university teaching is based on content-driven lectures.5 Assessment is predominantly based on recollecting facts and information, which is not challenging enough in terms of creativity, evaluation, and critical reflection. The caricatured presentation of this method is known as spoon-feeding, where the responsibility lies with the teacher/professor who is responsible for the content and the students are only passive 1 H.S. Barrows, Problem-Based Learning applied to Medical Education (Springfield, Illinois 2000) 42 Ibid., 43 Duch B., , Groh S.E, Allen D.E., Why Problem-Based Learning? A Case Study of Institutional Change in Undergraduate Education in, Duch, Groh, Allen., The Power of Problem-Based Learning (1st ed. 2001, Stylus, Sterling Virginia), 44 Duch B., , Groh S.E, Allen D.E., Why Problem-Based Learning? A Case Study of Institutional Change in Undergraduate Education in, Duch, Groh, Allen., The Power of Problem-Based Learning (1st ed. 2001, Stylus, Sterling Virginia), 45 Distlehorst LH., Robbs RS, A comparison of a problem-based learning and standard curriculum students: Three years of retrospective data. 1998, 10 (3), Teaching and Learning in Medicine, 131-137

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receivers.6 The method of teaching that worked decades ago ‘”will no longer suffice, for the simple reason that past approaches fail to develop the full battery of skills and abilities desired in a contemporary [world]”.7

As said, the new market demands puts the utility of the traditional approach into question and forces us to reflect on what our responsibility is as content designers and content delivers. The ‘founding fathers’ of YLS believed and agreed that the most suitable modern approach to learning and teaching is Problem Based Learning, adopted as an integrated approach across the entire LLB curriculum.8 The emphasis should be on its ‘integral wholeness’ which means that all subjects are taught in the same way. There is no mixture of ‘old’ and ‘new’, traditional style functioning alongside the new techniques. Our students approach any theme in any subject through PBL. Our objective was to marry substance with skills to combine the theory with practice and to make it an interactive and student focused experience.9 This places their focus more on the substantive learning, while the method has become a ‘for granted tool’ of learning.

The aim of this article is to discuss PBL and how it works at YLS. The reason for this examination is that PBL, in the legal context, is still somewhat experimental. YLS became the first UK law school to offer PBL as an integrated teaching method on the LLB programme. Prior to this, PBL has been used in some international law schools, including Maastricht University in the Netherlands, and Umeå University in Sweden. In the article, we would like to highlight some of the necessary elements which would maximise the educational benefits of PBL at any law school in the world. This will involve a practical explanation of how PBL works at YLS, and some of the core pedagogical philosophies behind its success. Secondly, we will briefly discuss the use of PBL in Clinical Legal Education and its adaptability in Civil Law Countries. Finally, we will explore PBL more deeply with reference to two PBL problems that we have used in our Medical Law module. This will involve an examination of how PBL can be interdisciplinary in several stages: by linking several areas of law and by linking law with other subjects. We will analyse how effective the PBL problems were, explaining why some problems did not work and presenting some suggestions for improvement.

I: PBL at York Law School

PBL is a method of active learning. It promotes a student centred approach when students take the responsibility for their own learning. It is ‘student-centred, problem-based, integrated, collaborative, reiterative, learning’.10 Here, problem-based should be understood widely and a problem in this context could also be a scenario, concept, principle or idea. It is also a method of teaching, although Cruickhank points out that it is more about learning than

6 Duch B., , Groh S.E, Allen D.E., Why Problem-Based Learning? A Case Study of Institutional Change in Undergraduate Education in, Duch, Groh, Allen., The Power of Problem-Based Learning (1st ed. 2001, Stylus, Sterling Virginia), 47 Duch B., , Groh S.E, Allen D.E., Why Problem-Based Learning? A Case Study of Institutional Change in Undergraduate Education in, Duch, Groh, Allen., The Power of Problem-Based Learning (1st ed. 2001, Stylus, Sterling Virginia), 48 JH Shin, RB Haynes, ME Johnston, Effect of Problem-based, self-directed undergraduate education on life-long learning, 1993, 14 (6), Canadian Medical Association Journal, 969-9769 Martenson D., Is Problem-Based Learning Beneficial? A research Overview, 1993, (4) Educao Medica, 2-910 Barrows, H., Foreword in Evenson, D. and Hmelo, C., (eds.) Problem-based learning: A research perspective on learning interactions, Lawrence Erlbaum, 2000, vii

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about teaching.11 Those unfamiliar with the system often mistaken it with the problem solving and this is exactly what it is not. The problem solving is really secondary and subject to the main objective, which is ‘learning during the process’. Often, the problem is unsolvable, in that key facts are deliberate absent to provide for discussions on a range of possible outcomes. The most important issue is what students have learnt during the process. Their learning is both substantive law as well as procedural wisdom, such as fact analysis and research skills. Dismantling the legal issues of the problem not only engage them in this process but also stimulates their curiosity, explores their creativity making the entire exercise dynamic and enjoyable.

In addition, those who do not know this method either mix it up with clinical legal education or wrongly associate it with a ‘problem’ since the word problem appears in its denomination. Thus, it is understood in legal jargon as a case; seeing as lawyers equate problem with a case. This leads to the assumption that PBL is a case-driven approach, and therefore focused purely on the practical and fails to include the theoretical. We would argue here that this is an erroneous perception. First, PBL is a method to tackle any theme in any subject and it could refer to the most theoretical issue, for example such as a concept of rule of law. PBL can enhance theoretical understanding and offer multiple perspectives to a theoretical issue.12 Contrary to what is assumed, the initial lack of guidance from the module leader stimulates creativity and offers a multi-layout vision. Furthermore, a strong emphasis on critical reflection and evaluation contributes to the development of theoretical skills. Our PBL’s design invests a lot in developing metacognitive skills. Literarily, it focuses on inciting students to ‘think about their own thinking’: deliberation or pondering which diametrically contrast with impulsivity.13 Barrows explains that metacognition should constitute an important element of students’ PBL’s experience. It should drive a student to reflect upon “Do I have the right ideas? What questions should I ask next?” Can the argument be seen from the different angle? What would be the best the approach to this subject?14 What we, as designers, are trying to achieve is developing in students an automatic awareness of those questions, so that they come automatically to their mind when they tackle any new task/scenario.15

Let us now explain how teaching and learning is organised in our department. YLS adopts a guided discovery model where tutors are provided with the learning outcomes in advance.16 They are instructed not to interfere too much in the sessions, as the sessions are designed to be led by the students. However, a tutor can occasionally give directions to the students and ensure that they are on the right track.17 Usually, students are also allowed to add additional learning outcomes that might have arisen from their discussions, thus ensuring that the

11 Cruickshank D., Problem-based learning in legal education, in Teaching lawyers’ skills, Maughan C. and Webb J., Butterworths, 1996, 18712 Kaufman D., M & Mann K.V, Teaching and learning in medical education: how theory can inform practice in Swanwick T (ed) Understanding Medical Education: Evidence, Theory & Practice (2010, Association for the Study of Medical Education), 16; Schmidt HG, Norman JR & Boshuizen HPA., A Cognitive Perspective on Medical Expertise: Theory and Implications, (1990) 65 (10) Academic Medicine, 61-62113 Barrows H.S, Problem Based Learning Applied to Medical Education (2000, Illinois), 1814 Barrows H, S, Ibid, 1815 Spiro RJ at al., Cognitive Flexibility Theory: Advanced Knowledge Acquisition in Ill-Structured Domains, 10 th Annual Conference of the Cognitive Science Society (Hillsdale, NJ, 1988)16 Grimes R & Fitzpatrick B, Problem-based learning and clinical education: old wine in new skins or a new vintage? Paper delivered at GAJE Conference, 11-15 July 2011, Valencia, Spain), 317 Norman G., Assessment in problem-based learning, in The challenge of problem-based learning, Boud D., and Feletti G., Kogan Page, 1997, 270

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students are in charge of their learning, and are allowed and indeed encouraged to explore their creativity and boosting their self-confidence. PBL indeed accommodates different learning styles. It can support abstract thinking and critical thinking.18 Mackinnon summarises “PBL reflects a constructivist view of learning, where knowledge is constructed internally and tested through interaction with the outside world and the Vygotskian social constructivist perspective which stresses the importance of social context for knowledge development”.19

The Guided Discovery model, we use, begins by allocating to each specific module a set of general module learning outcomes (what are the key points that the students should take away from the module? In criminal law, for instance, the module learning outcomes can state that the students should have learnt about certain criminal offences, certain defences available, certain procedural aspects, and so on). These module learning outcomes are provided to the students, and at York each module provides a “Block Guide”, which is essentially a study handbook provided every half term (the two teaching terms are divided into two blocks each), which contains the module learning outcomes.

Then, each PBL problem will have a set of specific problem learning outcomes that the students should arrive at during the PBL sessions. As said, the tutor can provide some direction towards the problem learning outcomes. Every problem learning outcome will link up to a broader module learning outcome. For instance, one criminal PBL problem can look at one or two specific criminal offences and defences; a second criminal PBL problem can look at a procedural issue. In this way, over the course of the full module, the students will, through the PBL studies, have met each of the module learning outcomes. The process of defining the specific problem learning outcomes (whether done by the students alone, or with some guidance provided by the tutor) is the essential part of the PBL process. Those problem learning outcomes is what determines what is to be researched and explored during that PBL cycle; the learning outcomes in essence asks what is to be learnt.

What we can take from this is that PBL works both on a module-by-module basis, but equally works on a cross-curricular basis. PBL can be a teaching and learning strategy for one single module, or it can be a strategy that defines and regulates the entire curriculum.20 The approach adopted at York is the latter, which means that PBL is the learning and teaching strategy which underpins the entire LLB programme and PBL is used in all core modules.

As suggested by Grimes and Fitzpatrick, PBL changes the nature and effect on learning and teaching as there is a rationale behind the learning method that goes beyond simply learning a particular topic.21 Thus, PBL is a philosophy which works best for the entire curriculum as an ‘integrated approach’. As mentioned before, in approaching every task in the same way the methodology becomes an ‘automatism’ and once assimilated, the students no longer focus on ‘how we are doing it?’ but rather on ‘what we are doing’ and ‘why are we doing it’. We use a variety of exercises to enhance the students’ awareness of why they learn a particular issue and also how it fits into a wider spectrum, both legally and interdisciplinary. One of the key skills we want to endow our students with is reflection on their own learning. We want

18 Mackinnon, 419 Mackinnon, 4 quoting Trigwell K & Prosser M, 1997, Towards an understanding of Individual Acts of teaching and Learning, 16 (2) Higher Education Research and Development, 241-25220 As demonstrated by Sylvester C., Hall J. And Hall E. in, Problem-based learning and clinical legal education: what can clinical educators learn from PBL, Journal of Clinical Education, July 2004, 3921

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them to take full responsibility of their own individual learning curve. Mackinnon claims that “PBL fosters reflective participants […] to read and critique key aspects of [the subject] to understand their own, and other’s status and role in it”.22 Reflexivity contributes not only to the process of acquiring knowledge but to the better understanding of complex legal concepts or complex legal problems and it becomes an asset in increasingly global employment market.23 We invest a lot of efforts in stimulating the critical thinking of our students. We assign them different tasks in the different stages of their education. In their first year, we ask each student group to write a collaborative essay, and thereafter for each group of comment on another firm’s collaborative essay. This gives the students the opportunity to discover examples of good and bad practice, and as well as an opportunity to reflect on their own learning practices. In the second year, in our Medical Law Module they need to evaluate the group work, critically assess their individual engagement, the fluidity of the work as a group and the coherence of all individual contributions. This part of the critical evaluation is included in their summative assessment. This year we are introducing the peer assessment of the presentations. Clearly, adoption of PBL at York also encourages critical evaluation of us as programme designers, law teachers and programme deliverers. Being a novelty in York we need to look carefully how the programme progresses, reflect on the problems that did not work well, fill the gaps, collaborate with students and take into account their views. PBL as we have developed it does not have a history and well-established framework, and therefore it continuously questions the way we teach and deliver.

Why is PBL at York a success? As mentioned before, in order to maximise the effectiveness of the PBL method we integrated the PBL into the full LLB curriculum. Only as an ‘integrated approach’ can we discuss the same legal issue, such as “personal responsibility” or “Parliamentary accountability”, from different perspective, or analyse different implications of that issue as it arises in, for instance, tort law, criminal law or public law. This is done through having PBL problems that cut across modules, where legal issues are mixed and matched to better reflect reality. Additionally, we can place specific themes within a wider context and look at its role in society and discuss possible interaction with other disciplines, whether it be politics, social policy and so on. In addition, only within the integrated approach can we make the learner central in all activities.24

One of the key issues why the PBL works in York is a specific atmosphere and the adopted philosophy that binds not only students but also members of staff.25 The specific atmosphere is enhanced by the facilities we offer and by the philosophy, values and rules that we all observe. We need to say that we have a fabulous building designed especially for the PBL’s needs to which we moved in 2010. The building includes dedicated PBL-rooms, and each PBL group is assigned their own. These ‘offices’ are equipped with mini libraries (of key texts), Smartboards and associated e-technology and boardroom furniture, including a large oval table.26 Each office has 3 ‘tenants’ – one PBL group from each year of study.27 They have assigned times when they can make an exclusive use of the room and for the remainder

22 Mackinnon J., Problem Based Learning and New Zealand Legal Education, (2006), 3 Web JCLI, 123 Ibid., 124 Bound D.J., & Feletti G, eds The Challenge of Problem Based Learning (London, Kogan Page 1991)25 Grimes R & Fitzpatrick B, Problem-based learning and clinical education: old wine in new skins or a new vintage? Paper delivered at GAJE Conference, 11-15 July 2011, Valencia, Spain), 626 Grimes R & Fitzpatrick B, Problem-based learning and clinical education: old wine in new skins or a new vintage? Paper delivered at GAJE Conference, 11-15 July 2011, Valencia, Spain), 327 Grimes R & Fitzpatrick B, Problem-based learning and clinical education: old wine in new skins or a new vintage? Paper delivered at GAJE Conference, 11-15 July 2011, Valencia, Spain), 3

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of the time the space is bookable. Between these rooms is an open area, which is free for students to use as they wish and it is in practice taken up for informal study and group work.28

In the academic year 2013/2014 we have 12 PBL groups, or Student Law Firms (SLF), in each year. Each SLF is asked at the very beginning to set up rules that the group would like to obey and which will form ‘a constitution’ of a group.29 This year we organised a conference where they had an opportunity to explain their own ‘Constitution’ to other firms, again providing an opportunity to reflect on their own practice. The rules will help to ensure that the group functions and progress properly and will be a vehicle to handle challenges and conflict. The point we would like to make here is that to give PBL the optimal chances for success we need to put together all elements such as facilities in which the SLFs can work, but also a philosophy of learning that is based on the rules and values developed by YLS. It is important to acknowledge that every SLF formulates its own rules and values. Therefore they rules and values might differ from one firm to another.30 A set of key values and principles drive and inform learning and teaching in the Law School as a whole. Although we do not have a ‘written constitution’ which captures all of these ideas, they have emerged organically through our practice, and have been affirmed at staff development events. A crucial point to make for the purpose to maximise potential of the PBL is that students are equally important in this process and the values and principles they chose are also valid for the members of staff. 31 These values are included in the PBL Guide for Undergraduate Students. In many ways, it is the Law School’s ethos that is the linchpin for the entire programme, and which makes the PBL process work. Rather than extensively quoting from the PBL Guide, we will summarise the principles and provide some examples.

“YLS as a learning community”.32 This is the first principle. It emphasises that the Law School is a community, and that both the students and staff are “active participants”. The essential point is that students and staff have a joint “commitment to learning”, and so are on the same team. It avoids the sometimes occurring mentality where lecturers and professors draw a clear line between them and their students, maintaining that the students are there to learn from them. The communal ethos at York allows students and staff to learn from each other, crucially by engaging in discussions during PBL sessions and the associated full-group “plenaries” (these are not lectures in the traditional sense, but discusses broader points related to that week’s PBL – the “answers” to the PBL learning outcomes are certainly not given). As such, a YLS students does not go to the law school merely to be taught, but to be part of a bigger learning community.

“Departmental citizenship”.33 This value builds on the previous one. It is important (and the PBL guide states that it is “useful and healthy”) not to see the students as merely consumers, but as active participants in the learning community. The term “citizenship” and “citizen” are used when dealing with both students and staff. The hope (which is continuously realised) is 28 Grimes R & Fitzpatrick B, Problem-based learning and clinical education: old wine in new skins or a new vintage? Paper delivered at GAJE Conference, 11-15 July 2011, Valencia, Spain), 329 Grimes R & Fitzpatrick B, Problem-based learning and clinical education: old wine in new skins or a new vintage? Paper delivered at GAJE Conference, 11-15 July 2011, Valencia, Spain), 330 Grimes & FitzPatrick..31 Grimes R & Fitzpatrick B, Problem-based learning and clinical education: old wine in new skins or a new vintage? Paper delivered at GAJE Conference, 11-15 July 2011, Valencia, Spain), 332 The PBL Guide 2013/2014 at http://www.york.ac.uk/law/undergraduate/law-at-york/pbl/; Grimes R & Fitzpatrick B, Problem-based learning and clinical education: old wine in new skins or a new vintage? Paper delivered at GAJE Conference, 11-15 July 2011, Valencia, Spain), 633 Ibid.,; Grimes R & Fitzpatrick B, Problem-based learning and clinical education: old wine in new skins or a new vintage? Paper delivered at GAJE Conference, 11-15 July 2011, Valencia, Spain), 6

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that the students will participate in the “life of the department”. An example of the departmental citizenship is the “Town Hall meeting”, a meeting between staff and the full year-group held once per term. In these meetings, members of staff will explain recent developments within the department and present ideas for further development. This allows the students to discuss developments and offer their own views. Additionally, students have been invited to focus groups looking at curriculum and teaching design of modules (both developing new modules and addressing issues with modules already studied). Feedback from students is taken seriously, and numerous changes have been made to the Law School in response (ranging all the way from redesign of entire module curriculums down to installing a vending machine in the Law School’s original building). Students are actively encouraged to help develop the community, and annual awards are given for “citizenship”. In the past, prizes have been given for arranging departmental social events, arranging advocacy and mooting events, and many others.

“Trust and respect”.34 This is important, both as between students and staff, and between students themselves. The department always treats the students as “capable adult learners”, who are motivated to learn. A particular role for the staff becomes to ensure that different “incentives” and “support” is available to all students, who will have different motivations behind coming to YLS.

“Respectful informality”.35 Building on the above, a key value is respectful informality. Strict hierarchical relationships are avoided wherever possible, and all members of the learning community are respected. Students are our collaborators; we listen to them, we re-design problems at their suggestion, improve the feedback forms or change the programme or order of plenaries if necessary. We put in place a system of Personal Advisor/ Advisee meetings every term when the Personal Advisors have an opportunity to discuss progress, needs and feedback. We implement the students’ remarks in our policies afterwards.

“Collaboration as a ‘good’”.36 At YLS, the students are expected to collaborate with one another. Group work is at the very heart of the PBL process. An appropriate commitment and suitability to collaborative learning is one of several issues which are addressed during the admissions interview.37 Students and staff collaborate closely, with some examples given above in terms of course and curriculum development. Equally, there is close collaboration between members of staff – given that PBL problems generally address several areas of law, there has to be close cooperation between module teams in designing the overall module, the individual PBL problems, and effective assessment. It should be also underlined the growing collaboration student-staff as mentioned in the previous paragraph. The role of students’ representation is growing, they take initiatives, organise seminars, roundtables, they take active role in shaping the optional modules. In sum, they work alongside the members of staff as almost co-equal.

“Commitment to PBL”. We add this value, which of course permeates all of the above (and perhaps it goes without saying). We can however make some specific comments about the serious commitment to PBL. In particular, members of staff are appointed with regards to 34 Ibid.,35 Ibid.,36 Ibid.,37 All prospective students (that is who meet the academic admissions criteria – English students applying from school must be predicted to obtain three ‘A’s - and wish to attend) are interviewed. No student is admitted onto the programme without being interviewed. The interviews are face to face other than for some overseas students who are interviewed by telephone or Skype. This gargantuan task involves all academics, adjunct staff and over 500 students a year.

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their suitability to the PBL strategy specifically in mind. At the start of each academic year, senior students run all introductions to PBL session for new first year students, which shows the strengths of the learning community’s citizenship. They work as students ambassadors during the open days and the interviews of the new candidates, a think that make them feel in charge and responsible for their programme and their Law School.

Many of these principles are common to many law departments in the UK. However, in the framework of the PBL they are part of the game and are crucial for ensuring the effectiveness of the system. PBL is resource intensive and we should admit that we were lucky and had enough of financial support to equip the Law School with facilities appropriate for the PBL’ classes. The appropriate facilities certainly contribute to the success of our programme. The Law School has purpose-built teaching facilities to accommodate the PBL process and small-group and community centred learning.38 They make certain tasks easier, more enjoyable and a have schedule and compulsory classes are just a part of the journey upon which the students have embarked.

Certainly, PBL is resource intensive and you need institutional support in terms of funding, accommodation and facilities but also a strong support of all members of staff. Any forthcoming advert for an appointment of a member of staff underlines our ethos, the way we work and adhering to this ethos is a precondition for selection. PBL is very demanding on staff who must invest a lot of time in designing the programme; it requires a great deal of collaboration between module leaders to synchronise the themes and to draft joint-problems. We are very committed to providing feedback, both formative and summative, in a variety of forms. We are in constant process of improving our feedback, generally guided by students’ comments. In particular, during the first year we comment extensively on unassessed work pointing out at the loopholes and explaining where they went wrong. There is a lot of emphasis on students engaging in critical assessment of their own work. We get a lot of support from the Writing Centre located at our University which offers to our students workshops on ‘formulating claims, research question, formulating arguments, fluidity and structure of their essays’. Within the specific subjects we organise surgeries to discuss students’ written work individually and commenting on any formative participation. We attach a lot of importance to formative feedback for which they do not receive marks but guides and suggestions. In the Medical Law module, for instance, students are asked to provide an Abstract/ Outline/ Bibliography on their chosen topic for the final essay. They receive formative feedback commenting on structure, arguments, and bibliography. There is no doubt that the feedback enhances the quality of their final work.39

As a Law School we have developed a Departmental Citizenship encouraging our students to participate in the life of the department where they can exercise their rights and take up their responsibilities. One of the main assets of this system, the skills that they do develop is a team work and collaboration. Students work in groups, learn how to share information, how to make sense of different opinions within the group, how to become a major team player with respect to the others and their contributions. This is also how the programme is delivered in Maastricht Law School.40

38 Ibid., Grimes R, Fitzpatrick B, 339 Crisp B., Is it worth the effort? How feedback influences students’ subsequent submission of assessed work, 2007, (32) Assessment and Evaluation in Higher Education, 571-81; Duncan N.,’ Feedforward’: Improving students’ use of tutors’ comments, 2007 32 (3) Assessment and Evaluation in Higher Education, 271-8340 Moust J., The Problem Based Education Approach at the Maastricht Law School, 1998, 32(1) The Law Teacher, 5-36

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The ‘integrated approach’ of teaching the entire curriculum through PBL leads to the students being very experienced with this collaborative method and in charge of the problems. It is worth mentioning that gathering information on the specific issue is the students’ responsibility. There are given a list of reading material on the specific area from which they are free to choose the material which best fits their learning needs. It should be highlighted here, we do not advice one book for a module. The reading is their responsibility. Using different sources makes students’ interaction more interesting and it stimulates discussion within the group.

It is hoped that this overview explains how PBL functions at YLS, and some of the core benefits provided by the system. However, as has been emphasised, the success of PBL at York comes from it being integrated into the department as a whole, being not merely a teaching methodology but rather the underpinning ethos of the department.

Part II: The use of PBL in Clinical Legal Education and the adaptability of PBL in Civil Law Countries.

a) ClinicsPBL has great value for clinical legal education in two ways. Firstly, it can prepare students effectively for real-life practice. Secondly, as a pedagogical process it can be used within the clinic itself.

At York, PBL is integrated into the entire undergraduate curriculum. Thus, the key skills that PBL provides to students are gained already in the first year of studies. This has an inestimable value for the effective participation in the clinical programme, which is offered in York already in the second year of undergraduate studies. When entering their second year, students have become used to the PBL process and have developed the key skills. This includes group work, collaboration, sharing the outcome of the research, and students are comfortable and efficient in group collaboration and know how to synthesise individual contributions in order to enhance the result. Other skills are personal and critical to real-life practice. This includes writing skills, researching and evaluating legal sources, summarising and utilising case and statute law with reference to the problem at hand. They learn to identify the relevant legal issues, searching for the most suitable materials, and understand how to support their arguments by evidence. They also learn presentation skills, and are comfortable with discussing legal and factual issues with a group. Each of these skills will be extremely helpful in the clinical environment.

First, a YLS student commented that Clinical education boosts their confidence showing that what they have learnt works in practice. They are introduced to the real world and are asked to deal with the real cases and the real clients. As said, the most important legal skills have been developed through the PBL, and they have had ample opportunity to practise them at several occasions in their SLFs in the PBL sessions.

However, the major drawback of the PBL is that they are aware that the problems are not real, they are designed to produce some specific outcomes.41 Therefore, to exercise their skills on the case which is not pre-planned and for which the learning outcomes have not been set up give them a wonderful sense of knowing and being able to act as lawyers. This is a great encouragement during their second year that allows them to keep their interest and enthusiasm at the very high level in the programme of our study.41 Drinan J., The Limits of Problem Based Learning, in Boud D.J and Feletti G (eds) The Challenge of Problem Based Learning (London, Kogan Page 1991)

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Second, the PBL classes as drafted in the YLS in the first year were usually combined problems, for example, public law/ criminal law/human rights. Those problems demonstrate contextuality of law. The legal issues interact and are not narrowed down to one legal discipline. The PBLs used are drafted to consider more than one area of law, which gives a flavour of a real case having many legal and non-legal connections. Thus, the combined problems offered in the first year provide an ideal background for dismantling cases in the clinic. And again, the clinic is a platform that proves that the skills acquired in the first year have practical implications applications.

In short, how the PBL method is more rounded and prepares better students for the Clinic?PBL puts a lot of emphasis on the skills such as, research skills, team works, evaluation of different material and evidence, presentation of the selected issues, and communicating those issues to the audience. Students receive written formative feedback many times during the year. They discuss their arguments in the ‘surgeries’ ((individual meetings) and are advised and helped how to improve their work. This year they are also asked to come with the strategy how to improve their work learning from the feedback. There is an excellent bridge between the process of learning and understanding the legal issues to problem solving so to see the practical implications and finality of this process. In addition, the Director of the Clinic in York choses the cases that have educational value supplementing the PBL process.42

b) PBL in Civil Law countriesThere are the Law Schools in civil law countries using the PBL method; nonetheless the PBL did not attract overwhelming interest. The explanation for this lies in the structure of the universities’ degree, institutional support and financing. The PBL as ‘an integrated approach’ requires profound restructuring or it might be an option for the new faculties. To be able to optimise the best results the programme should be designed for scratch. The success of the YLS lies partially in the fact that the degree programme was designed as a PBL model. Students usually do not have any prior knowledge about the Law which in this particular context is an asset. There are not stereotypes to follow and not a pre-established frame to operate within.

The Civil Law Countries have a clear division between disciplines and there is very little collaboration between the module leaders for example private and public law. The degree programme is already set up. It is rarely possible to consider one particular issue across all modules: example causation. It is not common while designing a programme that the designers think which legal disciplines are often combined in practice and that could be taught in a way that they interact one with another.

The modules operate autonomously, the legal issues are not tackled in the same time, for example not necessarily responsibility will be treated in the same time in private and public law. The combined problems are therefore difficult to elaborate. The PBL is based on an extensive formative feedback that requires the same engagement from all members of staff, working towards the short deadlines.

However, from the teaching staff’s perspective the encouraging element is that problems are not real and can be prepared in advance. The problems are hypothetical elaborated for the specific educational needs. There is no unexpected complication, or complication of legal

42 Grimes R., Clinical Legal Education and Problem-based learning: an integrated approach to study with particular reference to the UK, (unpublished paper for Luxembourg Conference) 2013

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issues as it could be in a real case in clinical legal education there is no necessity for the designer of’ learning by doing’. From this perspective the PBL could be a mild version or a taste of applying knowledge when the staff is not confronted in sorting out fresh issues. Once the problems or scenarios are ready, members of staff who have designed the problems have more a supervisory role and less involvement than in traditional systems. There is less space for traditional lecture. In our Law School they are rather supplementary to the problems, directed towards stimulating interests than delivering information.

In addition, marking the examinations based on PBL it is an easier task since there are prescriptive answers that are narrowed down to a few options. The suggestions that could enhance the PBLs in civil law countries to maximise the results would be to design the Law Programme in terms of PBL, providing a bridge between legal disciplines, create the groups of subject that could work together and design the combined problems.

Several Law Schools in the past tried some modules through PBL which in the end did not prove to be very successful. The programme that really works should be an integrated PBL programme where students approach all subjects through the same method.

III: The use of Problem-based Learning in teaching Medical Law at York Law School

In the previous sections we looked at PBL generally and some of its practical elements. In this section we will explore PBL more deeply with reference to our use of PBL in teaching a medical law module at York Law School. We have chosen to use medical law as an example because it is an effective way of demonstrating the interdisciplinary nature of PBL and how it can enhance the students’ practical understanding of the law. Medical law draws together strands from different legal areas, as well as joining law with other disciplines including politics, philosophy, and social policy. We emphasise the point that one of the core benefits of using PBL in teaching, and learning law in this kind of multidisciplinary approach, is that real legal situations usually raise more than one legal issue.

There is no uniform definition of the term “medical law”, nor is the term medical law used in every jurisdiction. In many ways, “medical law” has not yet gained status as a separate and distinct legal discipline (a small, and perhaps growing, number of English Law Schools are now offering modules in medical law). Medical law encompasses legal aspects from a wide range of core legal areas, such as public and administrative law, criminal law, contract law, tort law and so forth. Medical law pulls together aspects from these areas and applies them specifically to medical situations. In English law, some of the core issues, such as “negligence”, functions in a particular way when applied to medical situations (hence the term “clinical negligence”). Clinical negligence is of course similar to “ordinary” negligence (as would be taught in a Tort Law module), but some differences exist.

Studying medical law is thus not mere repetition of things learnt elsewhere, but a utilisation of previous knowledge to learn how it applies specifically to medical situations. More broadly, studying medical law also encompasses the study of legal and moral philosophy and ethics. These are broader themes that will help students make sense of their “strict” legal studies, which can also be used to justify particular legal decisions. The use of moral philosophy is particularly acute in cases dealing with end-of-life decisions, but applies in a wide range of medical dilemmas.

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We would suggest that medical law is an ideal subject through which to introduce PBL at new Law Schools, both in common law and civil law countries, because of its interdisciplinary nature. We accept that effectively introducing interdisciplinary PBL in countries with clearly delineated disciplines of law will present a considerable challenge, as expanded upon in Section IV. Given that medical law does not neatly fit into one legal disciple (it is neither exclusively “private law” or exclusively “public law” and so forth), it would be an effective way of introducing students to interdisciplinary legal studies. This is of benefit of Clinical Legal Education, where students will be presented with interdisciplinary legal problems.

Medical law: what are the core benefits of studying through PBL?

PBL is used throughout the undergraduate programme at York Law School. Our observation, generally and within medical law as well, is that PBL provides numerous benefits to the students. As discussed above, this includes practical benefits such as group work, and research skills, and legal benefits such as the ability to draw links between different areas of law, and to apply the legal learning to realistic problem-scenarios. In addition, it is also a perfect example to show how law could interact with non-legal disciplines such as science, philosophy, social and political policy, and medicine. At the same time it enables the students to study legal theory and philosophy in an applied and practical manner (as opposed to more abstract study of philosophy), ensuring that the theory is better understood because the students realise the practical value of the theory and how it actually applies to real-life legal disputes.

Each of these benefits applies to the medical law module and from our observation justified teaching medical law through PBL. We designed the PBL problems specifically to include a mix of black-letter legal studies (for instance, what are the rules on confidentiality) and moral and ethical philosophy (comparably, looking at notions of human integrity and individuality). Combining these two, you get a well-rounded understanding of the law and the importance of a particular law (continuing the same example, the students will not only understand the rules on confidentiality, but better understand the importance of confidentiality and the rationale for the severe penalties if confidentiality is breached). Through the feedback discussions with the group, this learning can be applied in an even broader sense (for instance, through a discussion on confidentiality for lawyers, and how the rules on legal confidentiality may be similar or different from medical confidentiality – in one group the students even discussed further to explore why the law protects confessional confidentiality for priests). All this shows that the students will get a very solid and comprehensive understanding of the issues explored within a PBL problem.

Medical law: no prior knowledge is necessary

The benefit of studying through PBL is that, strictly speaking, no prior knowledge is necessary. We know this from the use of PBL in core legal subjects in first year undergraduate studies: students learn the basics of criminal law, contract law, torts, and so forth, through PBL with no prior legal education. Indeed, as expanded upon below, having prior knowledge can impede the pedagogical benefits of PBL. With that said, medical law, as a more specialised subject which pulls together strands from a whole range of core legal subjects, it is advisable that students have some prior knowledge through the study of core legal subjects. This will enable the students to more comfortably spot the legal issues involved in the problem, and more easily direct their own studies to finding out how those

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issues work in the medical field. However, great care has to be taken to ensure that medical law PBL problems do not merely repeat learning already done in previous “core subjects” PBL problems. At York Law School, medical law is taught as an optional module in the second year of the undergraduate programme, and it has been clear that students at this level has more than sufficient knowledge to engage comprehensively with the PBL problems provided.

Medical law: What knowledge did we provide prior to PBL?

At the start of the module we held a series of introductory lectures. This was to ensure that all students had some fundamental understanding of some key ethical issues which arise within medical law. It is important that students are given an introduction to legal and moral philosophy, especially if the students have not studied this before. Students should be made aware that their PBL problems will not ask them to look purely at black-letter law, but will also ask them to consider more broadly the moral and ethical implications of the law and legal decisions.

As such, early lectures can look, for instance, on theories around individuality and personal integrity. The reason for this is that integrity is a broader theoretical theme which comes up time-on-time in medical dilemmas. The different theories personal integrity will help students understand the debate around confidentiality (as mentioned above), the debate around euthanasia and end-of-life decisions, whether a patient should be allowed to refuse treatment (including life-saving treatment). An introductory lecture of this nature will give the students a theoretical basis on which to build further individual learning in the PBL process. This type of introduction to broader themes and theories can be done in different ways. At York Law School, it is generally done through a combination of two means: firstly, students learn and discuss them in lectures; secondly, students are provided some further information in written teaching materials which are provided.

It should be stressed that the information provided in lectures and written teaching materials should only be of an introductory nature. The students should then be encouraged to further their own learning individually through PBL-related research. This enables the students to take charge of their own learning, and to better understand it through its application to a realistic legal problem. A careful balance has to be struck between how much introductory materials are provided and ensuring that students are not left entirely to their own devices.

Reflections on two medical law PBL problems

We will now look at two medical law PBL problems. These are two of the four PBL problems used in the medical law module at YLS during the 2012-13 academic year, and we are looking at problems 3 and 4. Firstly, we will provide the actual problem-scenario and the “official” learning outcomes. Problem-scenarios vary considerable in length, style and contents – the four medical law problems were in fact rather similar. Problem-scenarios can take many styles, including a general outline of a legal situation (as the two below), but can also be, for instance, a letter from a simulated client, or a created newspaper clipping. It can take any style as long as it presents some facts which gives rise to some form of legal question or dispute. Students are then free to formulate the learning outcomes in their own way, and the PBL process involves a great deal of flexibility in how learning outcomes are phrased, whether the students’ learning outcome puts a particular emphasis on this or that, or indeed when students create learning outcomes that the tutors had not anticipated. The role of

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the tutor is restricted to ensuring that the students’ learning outcomes are “on track”, so that the students do in fact research what the module envisages that they will learn that week. Following that, we will provide some comments on the strengths and weaknesses of the problem, and how it worked out during the actual teaching of the medical law module.

LLB – Medical Law 2012-13 – Problem 3

Mrs Hawkes is suffering from a Motor Neuron Disease. It originally took a while for her to get it diagnosed and Mrs Hawkes is now in a very serious condition. It is a degenerative illness and Mrs Hawkes will not get better. Mrs Hawkes has long considered committing suicide in order to escape from her situation. However, the illness has now progressed in such a fashion that Mrs Hawkes is unable to commit suicide, as she suffers from muscle atrophy. Recently, the condition deteriorated to the extent that she was hospitalised and requires assistance with eating and now also breathing during the night. She knows that she will eventually die in her hospital bed, and she wants it now.

Mrs Hawkes spoke to her husband and her doctor, Dr Nelson, and asked for their assistance in killing herself. The doctor said that he could not do that, nor could her husband, as it was unlawful. In the corridor later, the doctor reiterated to Mr Hawkes that he could absolutely not help his wife to kill herself.

Mr Hawkes thought this was a very unfortunate situation. He knew that other people in similar situations had tried to get the law changed in some way, but Mr Hawkes had never read up on that. He told the doctor a story about an old friend of his, called Joe Blanks, who had been dying from cancer. Mr Hawkes knew that Joe’s doctor had deliberately killed Joe at the end, when the pain was becoming unbearable. Dr Nelson said that this happens, but that nonetheless there was nothing he could do for Mrs Hawkes.

Mr and Mrs Hawkes discussed the possibility of “going overseas”. Dr Nelson learned of this conversation as well, and again said that could not happen as it was illegal for Mr Hawkes to help his wife to do that. Mrs Hawkes was dismayed and asked why so many other people could do it but not her.

Official Learning outcomes:

1. In what circumstances can a doctor legally be party to causing the death of his patient?

2. What civil and criminal liability might befall a person who actively helps kill another person?

3. Should it be lawful for doctors to commit euthanasia? 4. Should it be lawful for family members to actively assist a family member to seek

euthanasia in another country?

Comments

We hope that it is clear how this PBL problem is interdisciplinary on many levels. Firstly, it draws together strands from criminal law and private (tort) law. Students come to appreciate that for a single event there may be multiple remedies in criminal and private law. To an extent it also engages with public law, in terms of the regulation of medical staff and professional misconduct consequences. It also engages several other disciplines other than

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law. The question of whether doctors should be allowed to engage in euthanasia engages philosophy, political theory and social policy (these broad headings can, of course, be even further divided).

In the course of teaching this module, it became clear that this was the least successful of the four problems. We want to emphasise first that, as a stand-alone PBL problem, there was nothing wrong with it. The students enjoyed the problem and the legal and ethical issues that it raised. It resulted in a very serious and sombre feedback session, which saw several students share personal stories around the right-to-die debate. In this respect it was a very successful PBL problem.

However, the main issue with the PBL problem was that the questions it raised had already been researched and discussed in previous PBL problems forming part of the first-year PBL studies in the core legal subjects (looking at torts and criminal law). Because of this, the students already knew “the answers” (in a broad sense) when the PBL problem was first picked up. With this level of prior knowledge, the students were less enthusiastic about the process. A lot of the materials provided during the feedback sessions were research findings that the students had kept from their first year studies. In this sense, it felt like a wasted opportunity, and the students could have learnt more had the medical law PBL problem addressed something else. Some commentators have argued that repetition of studies is a positive thing [Grimes] but we would strongly disagree with that argument, as our practical experience from York (not just in the medical law module) tells us otherwise. This is an important lesson when it comes to strategic planning of both individual modules but also the whole programme. There must be a great deal of “big-picture” thinking and planning, and it is important that individual modules do not unnecessarily repeat what has already been taught in prior modules. It is understandable that students are less enthusiastic if asked to do research on topics they have already done. For future years, the third medical law PBL problem will be changed, to avoid this repetition and to give students something new and different to research.

LLB - Medical Law 2012-13 – Problem 4

Patrick and William are both in their thirties. They have been living together for a number of years, and have recently bought a new house in Fulford. A number of times they had talked about entering into a civil partnership, but Patrick was opposed to it as he considered it second-rate to “marriage”. In recent months they have been discussing options of getting a child. They have considered adoption, but decided that they should first attempt IVF.

Patrick had read a news report that surrogacy was a common and relatively unregulated market in India. Apparently a lot of English couples have gone through a surrogacy process there. William and Patrick decided to fly to India, partly as a vacation and partly to find a surrogacy clinic. In Bangalore they found a particularly helpful clinic that seemed modern, competent and trustworthy. They were very excited.

They had a couple of meetings with the clinic manager. It concluded with an agreement, saying that Patrick and William should pay £15,000 to the clinic for all its expenses (including the expenses of the surrogate mother). A surrogate mother was chosen from a list, but Patrick and William never met her. They decided that William was to be the biological father. William donated his sperm to the clinic in March 2012, ahead of the actual insemination procedure. On advice of the clinic they thereafter flew back to England.

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On returning home, reality set back in. William lost his job, and had a change of heart. The clinic in Bangalore however said it was too late, they had already made arrangements with the surrogate mother, and they could not turn back now. William is very angry with the fact that his sperm can be used without his consent in this way.

The insemination procedure was conducted in April 2012 and was successful. In January 2013, Patrick and William were informed that their child had been born. At this stage their relationship had deteriorated, because of the strains of William’s unemployment and his new opposition to the child. Whilst they were still living together, William was looking for jobs elsewhere, and was prepared to leave Patrick.

Immediately after the birth they did return to India and were given custody of the child. They named her Sandra. They were also given a signed letter from the surrogate mother, where she abrogated all parental responsibility of the child in favour of Patrick and William. Patrick and William arranged for British citizenship for the child and an exit visa from India. They returned to Fulford about three weeks after the birth of the child.

They petitioned the court for a parental order, so that their parentage would be legally recognised in England. A few weeks later, in early March 2013, they received a letter from a solicitor. The solicitor was acting on behalf of Mrs B, who was identified as the birth mother. Mrs B was countersuing for a parental order of the child, on the basis that the provisions of the Human Embryology and Fertilisation Act 2008 had not been complied with. Hence, she argued that as the birth mother she had full parental rights over Sandra.

Patrick is dismayed and is seeking legal advice on their position. He knows the Family Court is bound to protect the welfare of the child. He sympathises with the birth mother, Mrs B, but under no circumstances does he want to lose Sandra. William, on the other hand, seems happy to let Sandra return to her birth mother.

Learning outcomes:

1. What is the legal framework for surrogacy under the Human Embryology and Fertilisation Act 2008?

2. Do you think that Patrick and William will get a parental order over Sandra? 3. In order to provide justice for both the birth mother and surrogate parents, how tightly

should the law regulate surrogacy?4. Can fertilisation go ahead without the consent of a biological father? 5. How should the law protect the “welfare of the child” in cases such as this?

Comments

This fourth problem was probably the most successful of the four PBL problems. The reasons for its success mirror the reasons the third one was less successful. International surrogacy is a relatively new phenomenon, and the law around it is very new and less developed. This gives the students something completely fresh to bite into, and allows them to explore this unchartered territory. It allows for more critical research, and gives the students greater freedom to offer their opinions on what direction the law should go in. In simple terms, it is more exciting. It shows that PBL is very effective in addressing new and developing areas of law.

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We would argue, based on these observations, that a module should offer a mix of PBL problems. The majority, out of necessity, will have to focus on established rules and how they operate in real life. The students will learn the law as it is, but with the integration of legal philosophy will also critically assess the merits of the current law. Other PBL problems, however, can look at very recent developments in the law. Though there is perhaps less to research (fewer reported cases, less commentary and fewer books and articles), it allows the students to develop to the full in their discussions on where the law should head and what the future law ideally should be. Conclusion

In this chapter we have accounted for how PBL is used at York Law School, and we have used the medical law course as a practical example. Our experience at YLS shows that PBL is very effective and popular with the students. It places the students at the very heart of the learning process, and it gives them the theoretical and practical skills for the modern job market. As law graduates they see the “law” as it is, a combined social structure, as opposed to arbitrarily differentiated areas.

Certainly, PBL at York is a work in progress exercise and the Medical law module is a perfect example of this. Nevertheless, there are some factors, mechanisms and strategies which make it a success. First is the commitment to PBL from both staff and students. The commitment from the staff takes many forms: to put time and effort to amend redraft and reconsider problems and scenarios, to improve assessment feedback and students who not complain about the amount of compulsory activities and systematic preparation for the PBL classes. The same for the students: our programme design with loopholes and experimental activities make our student responsible learners. They are in charge of the knowledge and skills they develop. They are our collaborators, who have an active voice in the directions our curriculum develops. This makes their learning interesting, active and stimulating putting on the second plan the considerable work they put in.

Secondly, it is ‘an integrated approach’ that becomes a philosophy and logic of teaching and learning. Their familiarity with this method improves effectiveness of the programme. In addition it makes it possible to tackle the same issues throughout a few modules in the same time offering a wider perspective and see the role of law in context, in society and in relation to other disciplines. Thirdly, PBL focuses on developing metacognitive skills which find application in their future employment. They need to think why they learn a particular issue how this issue addresses the learning outcomes of the particular module, how a particular argument could be developed looking from a different perspective or what question should be asked next. Fourthly, the critical evaluation of their own work and the peer evaluation, peer proof reading before the final submission, are excellent learning tools through which they can reflect and improve the quality of assignments. Our feedback in particular the formative feedback gives them incentive to modify and improve their work aiming at the better final mark.

Finally, our Medical Law Module offers a perfect example how a combination of different elements of the PBL programme work together. They work through the problems illustrated in this article, they have also plenaries never on the same subject being rather complementary to the problems. They prepare the presentation on some medical dilemmas different than discussed in plenaries and the PBL. They write a critical evaluation of the presentation and

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this year they will also have a peer evaluation. It appears that the combination of those factors involves students, stimulates their interests and makes this module successful despite its experimental nature.

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