Visions of utopia: markets, medicine and the National Health Service

Visions of utopia: markets, medicine andthe National Health Service

John Harrington*University of Liverpool

Legislative restrictions on the sale of organs, gametes and surrogacy services are oftenseen as having no basis other than mere prejudice or taboo. This paper argues instead thatthey can be read as instances of a broader decommodification of healthcare provisionestablished in Britain with the creation of the NHS in 1948. Restrictions on the market-isation of medicine were justified by Aneurin Bevan, the founder of the NHS, and byRichard Titmuss, one of its chief academic defenders, in distinctly utopian terms. On thisvision, the NHS would function as a utopian enclave prefiguring an idealised non-capitalist future. This commonsense of post-war medicine was fatally destabilised by fiscalcrisis and social critique in the 1970s. Influential commentators like Ian Kennedy devel-oped an anti-utopian account of the real NHS and proposed legalistic and market-basedreform. These reforms sought to dissolve the enclave, assimilating medical work andthe NHS as a whole to broader systems of accounting and accountability. Insofar as theyhave been realised, they achieve a recommodification of medicine in Britain. The paperconcludes by examining recent studies of the ‘new NHS’, which see in the latter-dayidealisation of market processes a novel form of self-denying utopianism.

‘I had dreamed of a city whose people fared all alike as children of onefamily and were one another’s keepers in all things.’1

INTRODUCTION

Medical law in Britain is characterised by a series of anti-market prohibitions. Thesale of organs, gametes and surrogacy services is either banned or subject to severerestrictions.2 Brokering and advertising are outlawed. These restrictions have beensubject to harsh criticism, particularly from ethicists. Commentators argue that suchpaternalistic restrictions cannot be justified in terms of coherent rational argument.3

They reflect instead a set of ill-defined taboos and prejudices. But this approachabandons rather too soon the analysis of statutory limitations on markets in medicine.

* Versions of this article were presented at Newcastle Law School (14 May 2008) and at theCritical Legal Conference, Glasgow (6 September 2008). I am grateful to the participants fortheir insightful comments and suggestions. Particular thanks are due to Ambreena Manji andRichard Mullender for commenting on earlier drafts. Vishwas Devaiah and Catriona Sangsterprovided invaluable research assistance. Responsibility for errors and infelicities is mine alone.1. E Bellamy Looking Backward 2000–1887 (Oxford: Oxford University Press, 2007) p 182.2. See, respectively, Human Tissue Act 2004, s 32; Human Fertilisation and EmbryologyAuthority Code of Practice, para 4.26; Surrogacy Arrangements Act 1985, s 2.3. See, eg, S Wilkinson Bodies for Sale. Ethics and Exploitation in the Human Body Trade(London: Routledge, 2003).

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© 2009 The Author. Journal Compilation © 2009 The Society of Legal Scholars. Published by Blackwell Publishing,9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

In particular, it fails to take seriously the historical context of anti-marketarguments.

In this paper, I attempt to remedy that defect, drawing on rhetorical analysis andliterary criticism to trace the political background to legislative prohibitions on tradein the human body and some of its functions. In short, I propose that anti-marketarguments instantiate and extend certain utopian aspirations shared by the founders ofthe National Health Service (NHS). Their rhetorical plausibility depended signifi-cantly on their resonance with this general vision of the health service as an enclave,an exemplary zone of non-commodified human relations. It is equally true that thedeclining plausibility of anti-market arguments is linked with the perceived failure ofthis broader vision of the NHS. In the last two decades, the commodity form has beengradually reasserted across the range of medical practice. Patient autonomy, whichis used to justify commerce in human tissue or surrogacy services, resonates withmarket-based reforms to the structure of the NHS.

The paper is organised as follows. The next section takes as its particular focus theethical and legal debate regarding commercial surrogacy. The utopian backdrop to thisdebate is then elaborated using contemporary literary and social theory. I pay particu-lar attention to the formal aspects of fictional and political utopias. The notion of theutopian enclave can be discerned in the speeches and writings of Aneurin Bevan,founder of the NHS, and in the work of RM Titmuss, its most important academicproponent. Decommodification of clinical work is framed in utopian terms withreference to the writings of the nineteenth century visionary, William Morris. Thefollowing section reads Professor Ian Kennedy’s seminal Reith Lectures of 1980 as ananti-utopian attack on the enclave status of healthcare under the NHS. This stance hasalso been shared by recent Health Secretaries seeking to reform the Service in thename of choice and accountability. In the penultimate section, I seek to reveal thehidden utopian dimensions of this new dispensation. Drawing on the work of DavidHarvey and Zygmunt Bauman, I argue that the enclave form has been replaced by autopian idealisation of processes, such as market exchange, rational ethical debate andthe law itself. In conclusion, I suggest a number of anti-utopian critiques of this newcommonsense.

1. THE GIFT IN MEDICAL LAW

This section explores debates regarding the commercialisation of surrogacy in the UK.These debates illustrate the conflict between pro- and anti-market perspectives onmedicine in general and on the NHS as an institution. It will be seen that an inheritedset of commonsense assumptions supporting the limitation of commerce in healthcarehas recently been challenged by ethical reasoning, which emphasises autonomy andchoice. This debate is inherently political: it cannot be resolved in the abstract. Asrhetoric, in the classical sense, relevant arguments gain in force from the plausibilityof the visions of society by which they are underpinned.4 These visions are closelyconnected to broader material and institutional contexts, which are themselves subjectto challenge and change.

4. See AC Hutchinson It’s All in the Game. A Non-Foundationalist Account of Law andAdjudication (Durham NC: Duke University Press, 2000) p 170.

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(a) Surrogacy – the Brazier Report

In 1998, a team chaired by Professor Margaret Brazier was established by the HealthMinisters of the UK to review the regulation of surrogacy.5 Prior to this, attempts hadalready been made to forestall the marketisation of surrogacy by legislative prohibi-tion. Commercial brokering and advertising in this area were banned by the SurrogacyArrangements Act 1985.6 Contracts between surrogate mothers and commissioningcouples were deemed to be unenforceable.7 Moreover, under the Human Fertilisationand Embryology Act 1990 a court could deny a parental order in favour of thecommissioning couple where money had been paid in consideration of the surrogatemother handing over the child.8 However, increased use of non-profit agencies in the1990s, as well as rumours of a thriving unofficial market in surrogacy, led the UKHealth Ministers to instigate a fresh review and to seek proposals for law reform.

In its report, the Review Team recommended a more detailed system of regulation,based on a Code of Practice for non-profit surrogacy agencies who would be licensedand monitored by the respective health ministries of the different regions of the UK.9

Existing restrictions on commercialisation would be maintained and strengthened byan explicit limit on payments to surrogate mothers. These would be restricted togenuine expenses, as laid down in a detailed catalogue, with a ban on additionalremuneration. Violation of the new restrictions would constitute additional groundsfor denying a parental order to commissioning parents.

(b) Brazier’s justification

The Brazier Report offered several justifications for these proposals. It sought toprotect the welfare of children born as a result of surrogacy.10 The report was alsoconcerned with possible exploitation of the surrogate mother, who usually came froma lower socio-economic background than the commissioning parents.11 On this point,the report was criticised for exhibiting an unjustifiably paternalistic attitude to surro-gates.12 The effectiveness of the proposed regulatory regime was also challenged.13

For whatever reason, Health Ministers opted not to change the law and the regulationof surrogacy in the UK remains as it was in 1998.14

Of greatest importance in the present context was the final justification given by theReview Team for its restrictive stance. This arose from a concern with the ‘commodi-fication of childbearing’.15 Whether the payment to the surrogate was classified as a

5. M Brazier, A Campbell and S Golombok Surrogacy. Review for Health Ministers ofCurrent Arrangements for Payments and Regulation Cmnd 4068, 1998.6. Respectively Surrogacy Arrangements Act 1985, ss 2 and 3.7. Ibid, s 1A. Adoption arrangements are subject to similar control: Adoption Act 1976, s 57.8. Human Fertilisation andEmbryology Act 1990, s 30(7).9. See ‘Summary of recommendations’ in Brazier et al, above n 5, pp 71–72.10. Admittedly, there was no direct evidence of psychological harm to such children, but thepotential for this demanded a precautionary approach from the state; see ibid, pp 32–33.11. Ibid, p 35.12. M Freeman ‘Does surrogacy have a future after Brazier?’ (1999) 7 Medical Law Review1 at 5.13. Ibid, at 10.14. See further JK Mason and GT Laurie Mason & McCall Smith’s Law and Medical Ethics(Oxford: Oxford University Press, 7th edn, 2006) pp 105–119.15. Brazier et al, above n 5, p 38.

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fee for services or the price of a product, the resulting child would be viewed, andwould view itself, in terms of a monetary equivalent. Consequently, the law shouldensure that bearing a child for others was only ever ‘a fully informed and free actof giving’.16 The Review Team drew support for its position from the fact that‘as a society, we believe that the use of our procreative capacities to assist othersshould . . . be a gift, not a commercial transaction’.17

This was the ‘core value’ on which many social arrangements in the UKwere based, including legislative prohibitions on markets in organs and gametes.Consistency demanded that surrogacy be regulated in the same manner.

The reality and acceptability of commodification in surrogacy has been widelydebated before and since the Brazier Report.18 I will not engage directly with thisethical dispute here. Rather, I focus on the style of argument adopted in the reportitself and by some of its critics in order to reveal the rhetorical strategies and politicalstakes in the controversy over surrogacy. These are made clear in the response ofMcLachlan and Swales to Brazier. They raise a familiar set of anti-paternalist argu-ments in support of a freer market in surrogacy.19 On commodification, they charge thereport with failing to give adequate reasons for its position. The ‘core values’ ofBritish society invoked by the Review Team are merely ‘assertions of their own viewsrather than arguments for them, far less arguments against opposing ones’.20

For McLachlan and Swales, it cannot be a matter of what ‘we as a society’ believe,but rather what can be argued for in reasoned discussion. In essence, this criticismprescribes a certain type of speech in relation to controversial issues of health policy,namely that which adopts the abstract and detached style of liberal bioethics. Speechwhich fails to meet the formal qualities of ethics discourse is stigmatised as redundantor ‘rhetorical’.21

(c) Brazier’s rhetoric

For McLachlan and Swales, ‘rhetoric’ functions as a term of abuse, a negative pole bywhich to define their own more scientific enterprise. But this is to neglect the richtradition of rhetorical analysis in politics and literature.22 As Peter Goodrich noted,rhetoric in this vein is a ‘study of arguments related to the historical situation andimmediate needs of the community’ to which the speech is addressed.23 The form andpurpose of Brazier’s affirmations can be better grasped if their nature as rhetoric is

16. Ibid, p 39.17. Ibid, p 39.18. For example, see: A van Niekerk and L van Zyl ‘Commercial surrogacy and the com-modification of children: an ethical perspective’ (1995) 14 Medicine and Law 163; Wilkinson,above n 3, ch 8.19. HV McLachlan and JK Swales ‘Babies, child bearers and commodification: Anderson,Brazier et al, and the political economy of commercial surrogate motherhood’ (2000) 8 HealthCare Analysis 1.20. Ibid, at 10.21. Thus the Review Team is charged with the ‘rhetorical ploy’ of contrasting its own ‘valuesand beliefs’ with the mere ‘opinions’ of its opponents: ibid, at 10.22. For an overview, see R Barthes The Semiotic Challenge (Berkeley: University ofCalifornia Press, 1994) ch 1.23. P Goodrich Reading the Law. A Critical Introduction to Legal Method and Techniques(Oxford: Blackwell, 1986) pp 171–172.



taken seriously and analysed as such. In short, we should read this crucial part of thereport, not as a failed ethical argument, but as an exercise in political persuasion,oriented to the needs and values of a concrete, historical community. I will argue thatthe ‘gift relationship’ invoked by Brazier as a ‘core value’ amounts to a rhetorical‘topic’: a piece of commonsense shared between Review Team and its wider audience.Brazier sought to extend to the conclusion (ie a prohibition on commercial surrogacy)the allegiance of the audience to the original topic (ie the ‘gift’).24 Of course, any giventopic functions as more than a simple tool of persuasion. The use of a particular topicserves to constitute an audience actively by confirming its identity as the bearer ofcertain shared values.25 Opposing arguments seek to confirm and constitute thisaudience around a rival set of values.

(d) A utopian vision?

The persuasive force of Brazier’s ideal of non-commodification can be understood byattending to its specific historical resonances. As I have argued elsewhere, the broaderpattern of post-war welfare arrangements forms a decisive context in this regard.26 Itwill be seen that the topic of the ‘gift’ crystallises a utopian vision of a better society,one from which money has typically been banished. This topic gained force in thepost-war years with the creation of the NHS and through the ideological labours of itsfounders and promoters. Brazier’s championing of the ‘gift’ partakes of this utopianvision, however implicitly. It gains in resonance from a particular institutional setting.It appeals to and constitutes an ideal audience of fellow citizens committed to non-market relations in this sector. This is the performative effect of eliding ‘we’ as asociety with ‘we’ meaning the Review Team.27

The widespread criticism of Brazier’s reasoning would indicate that, by 1998 atleast, the topic of the ‘gift’ had declined greatly in plausibility. Indeed, not longafterwards, Professor Brazier herself remarked on this shift and its connection toinstitutional and economic change. She noted that regulation was based:

‘on the supposition that fertility services would be integrated into theNHS . . . The enormous commercial potential of developments in reproductivemedicine was hardly foreseen, and opposition to commodification of reproductionwas almost a given. Yet debate on commodification and commercialisation is at theforefront of debate today.’28

Returning briefly to McLachlan and Swales, we can observe the active contributionmade by critics to creating a new commonsense regarding human reproduction andhealthcare. At a formal level, their proscription of non-ethical language has alreadybeen noted. Ironically, they themselves, no less than Brazier, make a number ofrhetorical moves to bolster their case. In a typically rhetorical appeal to the obvious,they state that ‘Britain, like any society is a “multi-values” one’.29 The ‘we’ in their

24. Ch Perelman The Realm of Rhetoric (Notre Dame IN: University of Notre Dame Press,1982) p 21.25. Goodrich, above n 23, p 178.26. JA Harrington ‘Law’s faith in medicine’ (2009) 10 Medical Law International 357.27. Brazier et al, above n 5, p 39.28. M Brazier ‘Regulating the reproduction business?’ (1999) 7 Medical Law Review 166at 191.29. McLachlan and Swales, above n 19, at 10.



argument is now constituted by the ‘rest of us’ who may not agree with the ReviewTeam. A new mode of address is required for this new audience. Social disaggregation,they imply, calls for neutral technocratic expertise, rather than value-laden politicalrhetoric.30 In conclusion, they assert that the perceived weaknesses of the BrazierReport demonstrate a broader ‘need for . . . radical re-assessment of the nature andproper scope of pecuniary transactions in connection with the provision of healthcareand related services’.31 Legislative bans on organ and gamete sales can be challenged,even the core NHS settlement itself.

2. DIMENSIONS OF UTOPIA

The NHS was the most prominent institution of the ‘Keynesian’ welfare state inpost-war Britain.32 As such, it made an important contribution to the tasks of the statein that conjuncture: achieving social peace between capital and labour, discharging theresponsibility of the state to maintain a suitably fit workforce, and as source of demandfor the growing pharmaceutical and medical equipment industries.33 But this is not theonly possible view of the NHS. The attachment of many intellectuals and much of thegeneral public to the Service cannot simply be accounted for in functional terms.Political economy alone cannot explain the purchase of the ‘core values’ adumbratedin the Brazier report for example. As I have suggested above, these values aresupported by a broader, utopian vision of the NHS as an idealised zone exemptedfrom the morals of the marketplace.

Like ‘rhetoric’, ‘utopia’ now largely functions as a term of abuse in politicalspeech. It is synonymous with fanciful and impractical schemes, on the one hand, andcoercion, on the other.34 The NHS is sometimes condemned in this vein as a doomedattempt to make everyone healthy or to provide limitless care to everyone regardlessof the cost.35 However, there is a great deal more to ‘utopia’ than the simple dream ofabundance. Historically, utopians have often laid more emphasis on the moral renewalthat would follow upon institutional change.36 The study of utopias is wide rangingand draws on literary criticism, political philosophy and the history of ideas. I cannotdo justice to this varied body of insights here. Instead, I will pick out a number ofthemes which help to illuminate the key utopian features of the NHS as represented inpolitical, legal and academic rhetoric. These themes are intelligible across two inter-related dimensions: the form taken by real and imaginary utopias; and the functionswhich such utopias are intended to perform.37

30. Significantly they query the failure to include an economist in the Review Team: ibid,at 14.31. Ibid, at 17.32. For an overview, see V Berridge Health and Society in Britain since 1939 (Cambridge:Cambridge University Press, 1999).33. See B Jessop The Future of the Capitalist State (Cambridge: Polity, 2002).34. For example, see J Gray Black Mass. Apocalyptic Religion and the Death of Utopia(London: Penguin, 2008).35. On the idea that ‘the NHS was a bottomless pit into which any amount of money could bepoured without satisfying the demand for healthcare’, see N Timmins The Five Giants.A Biography of the Welfare State (London, Harper Collins, 2nd edn, 2001) p 260.36. See R Levitas ‘Looking for the blue: the necessity of utopia’ (2007) 12 Journal of PoliticalIdeologies 289 at 300–301.37. See R Levitas The Concept of Utopia (Cambridge: Polity, 1990) p 178.



Utopias have traditionally been conceived of as enclaves, separated from the widerworld. Practical utopias like garden cities and rural communes are physically carvedout of the rest of society. Literary utopias are often set in another time or place. Butthey are not implemented or imagined in a vacuum. They always maintain a significantrelationship with the actual social and political situation within which they are con-ceived. Indeed, it is this combination of separation and connection that gives utopiastheir critical power. As the American critic Fredric Jameson notes:

‘[they] are something like a foreign body in the social . . . they remainas it were momentarily beyond the reach of the social and testify to its politicalpowerlessness, at the same time they offer a space in which new wish imagesof the social can be elaborated and experimented on.’38

This ‘pre-figurative’ trait has been especially true of concrete utopian communities.Thus, the mediaeval monastery was an island of rationality and discipline later to begeneralised across all of western society with the Reformation.39 Robert Owen’ssettlement at New Lanark was intended to anticipate a just society in contradistinctionwith the harsh world of early British industrialism.40 But concrete utopias do notsimply constitute a message to the outside world. Their inhabitants gain a moraleducation through following a distinctive regime of rules and routines. Practicalutopias are schools for the future.

In the terms used by David Harvey, the enclave is a ‘utopia of spatial form’.41 Itpresumes a sequestered space within which the messy process of historical change andsocial conflict has been repressed. To achieve this, it is often necessary to banishcertain key features of the world outside. Thus, Thomas More constituted his originalutopia as ‘a closed space economy’ by excluding the disruptive forces of money,private property and wage labour.42 As Harvey puts it, ‘the happy perfection of thesocial and moral order depends upon these exclusions’.43 Human relations are nolonger mediated by money and property. Altruism and solidarity replace alienationand competition.44 Life within such an enclave utopia is, therefore, an education innon-commercial morality.

The final generic theme in utopianism to be considered here is the ‘blueprint’. Inutopia the ‘messy play of social processes’ is often replaced by a precisely specifiedmachine.45 According to Jameson, this ‘apparatus’ gathers up necessity, absorbingunfreedom, and allowing freedom to flourish all around itself’.46 In the context ofmedicine, necessity connotes the bodily constraints imposed by pain and sickness.The associated machine might then be a diagnostic device or a new drug. But theapparatus need not take the concrete form of a machine or a therapy. It can also beunderstood more broadly to include the administrative system within the utopian

38. F Jameson Archaeologies of the Future. The Desire Called Utopia and Other ScienceFictions (London: Verso, 2005) p 16.39. K Kumar Utopianism (Buckingham: Open University Press, 1991) p 65.40. See K Polanyi The Great Transformation. The Political and Economic Origins of OurTime (Boston: Beacon Press, 2001) pp 174–182.41. D Harvey Spaces of Hope (Edinburgh: Edinburgh University Press, 2000) p 160.42. Ibid, p 160.43. Ibid, p 160.44. See Levitas, above n 37, pp 6–7.45. F Jameson, from ‘The seeds of time’ in M Hardt and K Weeks (eds) The Jameson Reader(Oxford: Blackwell, 2000) p 385.46. Ibid, p 385.



enclave. This is especially true when it is recognised that bodily necessity is oftenmatched by economic necessity. In a market system, lack of resources may blockaccess to the apparatuses of clinical medicine, reinforcing the unfreedom caused byill-health. From this perspective, the organisational blueprint for free healthcare canitself be viewed as a utopian machine. At one and the same time, it serves to gatherup the chaos of the market and to conquer the necessity of poverty and ill-health.Its implementation allows the enclave to function as a zone of moral exemplarity.

In the following section, I trace the utopian aspects of the NHS with reference tothe characteristics discussed above. It is, of course, true that the NHS was notprogrammatically designed as an ideal community in the manner of the fictional orpractical utopias just considered. But, as the philosopher Ernst Bloch argued, the‘anticipatory consciousness’ typical of utopia is ‘embedded in a vast range of humanpractice and culture’ going well beyond traditional schemes.47 This broader categoryincludes ‘piecemeal social democratic and “liberal” reforms allegorical of a wholesaletransformation of the social totality’.48 The most prominent and enduring socialreform in post-war Britain, the NHS was invested with just such an allegoricalmeaning by many of its early proponents.

3. THE NHS AS UTOPIAN ENCLAVE

The Beveridge Report of 1941, on which the NHS and other welfare state initiativeswere based, can be read as a utopian blueprint.49 In prose evoking the redemptivetravelogue of John Bunyan’s Pilgrim, the report enumerated the five giant evils whichits programme would challenge: Want, Ignorance, Idleness, Squalor and Disease.50

Beveridge aimed to liberate the people from the brute, embodied necessity of sicknessand ill-health. The basic mechanism for achieving this was clear: a system of health-care available to all and free at the point of use.51 However, Beveridge’s blueprint wasno more than a framework. In particular, there was little detail on the provision ofhealthcare.52 The task of creating a national system fell to Aneurin Bevan, Minister ofHealth in the Labour Government of 1945.

(a) Building socialism: Aneurin Bevan

The essence of Bevan’s scheme was to remove healthcare from the market in twosignificant respects.53 On the one hand, patients’ access to care would no longerdepend on their income. Clinical relations would not be mediated by money. On the

47. See Levitas, above n 36, at 291.48. Jameson, above n 38, p 4.49. Sir William Beveridge Social Insurance and Allied Services Cmnd 6404, 1942.50. This insight on style is drawn from Timmins, above n 35, p 23. Bunyan’s millenial visionwas a staple of radical political culture in England up until the early twentieth century, seeEP Thompson The Making of the English Working Class (London: Penguin, 1980) p 34.51. Beveridge has been accurately described as a ‘non-socialist collectivist’, indicating thebroad faith in planning at the time; see M Rintala Creating the National Health Service. AneurinBevan and the Medical Lords (London: Frank Cass, 2003) p 16.52. Timmins, above n 35, p 24.53. For an overview, see C Webster The National Health Service. A Political History (Oxford:Oxford University Press, 2002) pp 12–30.



other hand, professional autonomy was guaranteed within a wholly state-fundedservice. Doctors were exempted from many of the disciplines imposed on wagelabourers in the rest of the economy. As will be seen, this ‘double decommodification’was not simply a matter of strategy, ie to induce cooperation among doctors or to gainfavour with the public. In his speeches and writings, Bevan cast these features of theNHS in distinctively moral terms.

At the bottom, Bevan shared the traditional utopian view that the human characterwill be improved by the abolition of money and private property.54 In this respect,the NHS prefigured a broader transformation in British life:

‘A free health service is pure Socialism and as such it is opposed to thehedonism of capitalist society . . . It takes away a whole segment of private enter-prise and transfers it to the field of public administration . . . by means of which thenew society is gradually being articulated.’55

The pre-war patchwork of insurance, charity and commercial provision was to bereplaced by an orderly system. Collective planning would eliminate the insecurityproduced by sickness and economic necessity. Beyond this, a moral bonus wouldaccrue to the wider population as the general inclination to solidarity and altruism wassatisfied. Society, said Bevan, ‘becomes more wholesome, more serene and spirituallyhealthier, if . . . its citizens have at the back of their consciousness the knowledge thatnot only themselves, but all their fellows have access when ill to best that medical skillcan provide’.56 ‘Serenity’ was one of Bevan’s favourite words. According to hisbiographer, it expressed the widespread desire for a settled ‘sense of order, notimposed, but cooperatively established’.57

The capacity of the NHS to achieve moral renewal was not simply a matter of freeaccess. It also derived from the nature of medical work. For Bevan, doctors wereexemplars of a non-capitalist way of life. Scientific pioneers like Pasteur, Jenner andLister were, he said:

‘dedicated men and women whose work was inspired by values that havenothing to do with the rapacious bustle of the stock exchange . . . Few would havedescribed themselves as Socialists, but they can hardly be considered representa-tive types of the competitive society.’58

In practice, however, commercial imperatives limited the profession’s autonomyand stifled its impulse to serve the public without discrimination. Bevan reservedspecial disapprobation for the buying and selling of doctors’ practices, which wasbanned under the National Health Service Act 1946.59 He argued that a doctor’s workshould be determined, not by external criteria or the requirement to turn a profit, butby ‘the standards of his profession and the requirements of his oath’.60 By under-writing clinical practice without specifying its content, the NHS would restore the

54. J Carey ‘Introduction’ in J Carey (ed) The Faber Book of Utopias (London: Faber, 1999)p xiii.55. A Bevan In Place of Fear (London: Quartet Books, 1990) p 106.56. Quoted in M Foot Aneurin Bevan – A Biography vol 1: 1897–1945 (London: MacGibbon& Kee, 1962) p 105.57. Ibid, p 105.58. Bevan, above n 55, p 99.59. Rintala, above n 51, p 51.60. Bevan, above n 55, p 112.



moral integrity of medicine. By constituting itself as an enclave of non-commodifiedlabour, it anticipated a general refashioning of the world of work.

I explore in greater detail the utopian aspects of this double decommodification inthe rest of this section. The influential commentator Richard Titmuss portrayed theNHS as a practical utopian community, participation in which would educate patientsin the values of solidarity and altruism. The nineteenth century fiction of WilliamMorris articulates a vision of labour beyond the market, common to socialists and eliteprofessionals alike.

(b) Altruism and solidarity: Richard Titmuss

Richard Titmuss is best known to contemporary medical lawyers for his work oncommercial markets in human blood.61 His book ‘The Gift Relationship’ has been soinfluential that its title is often taken as shorthand for a range of anti-market positionsin healthcare, such as that adopted in the Brazier Report discussed above. The book’sargument is woven from material in anthropology, economics and ethics, and has beensubjected to extensive critique.62 However, I will only focus here on its nature aspolitical rhetoric. Titmuss was clear that there was more at stake in the ‘commodifi-cation’ debate than the sale of human tissue. He predicted that:

‘if human blood be legitimated as a consumption good . . . [a]ll policy wouldbecome in the end economic policy, and the only values that would count are thosethat can be measured in terms of money and pursued in the dialectic of hedonism.’63

Keeping blood out of the market was an expression of his broader utopian ambitionsfor the NHS and the welfare state. Titmuss challenged the idea that people wereessentially incapable of altruism. Human motives were not fixed in this way. Rather,they could be encouraged or discouraged by specific practices and social arrange-ments.64 Accordingly, the NHS, as an institution, was capable of transforming thequality of human relationships through fostering ‘a sense of mutual responsibility’.65

Titmuss vividly set forth this vision in one of his last essays: a description of hisexperiences as a cancer patient at the Westminster Hospital in 1972. Originallydelivered in lecture form to an academic audience, this is framed as a travel narrativein the manner of much utopian fiction.66 Sitting on a bench in the waiting room of aradiotherapy department, Titmuss evokes the democratic and egalitarian nature of theNHS from the outset.67 He introduces a series of representative fellow patients, allfrom modest or disadvantaged backgrounds, but each benefiting equally from NHS

61. RM Titmuss The Gift Relationship. From Human Blood to Social Policy (New York:New Books, 1997).62. For example, see FL Rapport and CJ Maggs ‘Titmuss and the gift relationship: altruismrevisited’ (2002) 40 Journal of Advanced Nursing 495; KJ Arrow ‘Gifts and exchanges’ (1972)1 Philosophy and Public Affairs 343; RM Stewart ‘Morality and the market in blood’ (1984)1 Journal of Applied Philosophy 227.63. B Abel-Smith and K Titmuss (eds) The Philosophy of Welfare. Selected Writings ofRichard M Titmuss (London: Allen & Unwin, 1987) p 191.64. Titmuss, above n 61, p 306; see also D Archard ‘Selling yourself: Titmuss’s argumentagainst a market in blood’ (2002) 6 Journal of Ethics 87 at 90.65. D Kynaston Austerity Britain 1945–51 (London: Bloomsbury, 2007) p 543.66. Jameson, above n 38, p 18.67. Abel-Smith and Timuss, above n 63, p 269.



treatment. Next to him on the bench, for example, is a ‘harassed middle aged woman,married to a postman, who had two children’.68 Who went first depended ‘quite simplyon the vagaries of London traffic – not race, religion, colour or class’.69 There followsan evocative description of his time as an inpatient. He is helped by a 53-year-old man,named Bill, who is receiving treatment for spinal injuries sustained in North Africaduring the Second World War:

‘Since the National Health Service came into operation in 1948 Bill has spentvarying periods from two to four or five weeks every year at the WestminsterHospital receiving the latest micro-developments [in] care and rehabilitation . . .’70

With help from Titmuss, Bill worked out that he has ‘cost the National Health Service’roughly half a million pounds over the previous 24 years.71

Titmuss conveys an atmosphere of friendly cooperation on the ward, notwith-standing technical shortcomings. Patients assist each other to use the sole portabletelephone, though the lines keep getting crossed. Titmuss himself helped:

‘with the tea trolley at 6 o’clock in the morning when all the mobile patientsserved the immobile patients, and one shuffled around not caring what one lookedlike and learning a great deal about other human beings and their predicaments.’72

Interestingly, the medical and nursing staff are not brought to life in any roundedway, Titmuss being concerned to detail the ‘fellowship’ between patient-citizensabove all else.73 Clinical practice is evoked instead through a depersonalised descrip-tion of the expensive ‘theratron’ used for radiotherapy. The control panel of this‘apparatus’:

‘looked like what I imagine might resemble the control panel of the Con-corde cockpit . . . [Y]ou lie naked on a machine and you are raised and lowered andthis machine beams at you from various angles radium at a cost, so I am told, of £10per minute.’74

Titmuss’s enumeration of costs here and throughout the article highlights the role ofthe NHS itself as a utopian machine absorbing economic necessity and freeing upspace for what he called ‘social growth’: a process which ‘cannot be quantified’.75

However, it also suggests a constant awareness that this non-market enclave is subjectto pressure from wider economic and political forces. In this respect, Titmuss’s NHSshares certain features with the pastoral ideal of England depicted in many of LordDenning’s judgments.76 Admittedly, Denning looked back regretfully, whereasTitmuss looked forward in hope. Nonetheless, each conjured up a precarious zone of

68. Ibid, p 269.69. Ibid, p 275.70. Ibid, p 270.71. Ibid, p 270.72. Ibid, p 274.73. For further discussion, see Titmuss, above n 61, p 311.74. Abel-Smith and Timuss, above n 63, p 273.75. Ibid, p 274.76. D Klinck ‘ “This other Eden”. Lord Denning’s pastoral vision’ (1994) 14 Oxford Journalof Legal Studies 25.



unmediated and fraternal relations between people.77 The atmosphere of fellowshipand harmony within is contrasted with the complexity and alienation threatening fromoutside.78

(c) Labour as art: William Morris

The creation of the NHS was made possible by a remarkable convergence of opinionbetween the socialist minister Aneurin Bevan and the ennobled leaders of the medicalprofession in the 1940s.79 Both sides agreed that medical work was a matter of‘privacy, sacredness and inviolable clinical judgment’ exempt from ‘overtly politicalor economic considerations’.80 Though unexpected, this convergence was not unprec-edented when viewed in the context of English cultural history. As Raymond Williamspointed out, many conservatives and socialists had been united in denouncing indus-trial society from the late eighteenth century on.81 Critics focused, in particular, on thegrowing use of machinery in production, the routinisation and specialisation of workand the mass manufacture of goods. This critique was expressed in the aesthetictheories of the English romantics who denounced mere ‘imitation’ as an inauthenticmode of artistic production involving only the following of rules. They contrasted itwith the unique emanations of artistic genius.82 For Karl Marx, industrial capitalismentailed the alienation of workers from the process of production, from each other andfrom themselves as human beings.83 All condemned what Shelley called the ‘unmiti-gated exercise of the calculating faculty’.84

The different elements of this tradition come together in the writings of WilliamMorris, nineteenth century artist, craftsman and utopian socialist. For Morris, the artsdefined a quality of living and working ‘which it was the whole purpose of politicalchange to make possible’.85 His views on labour developed in opposition to those ofthe novelist Edward Bellamy and other ‘state socialists’, who expected technicalprogress and bureaucratic administration to abolish poverty and eventually eliminatethe need for work.86 For Morris, this goal of maximum leisure denied the nature of

77. Ibid, at 45.78. See SJ Tonsor ‘The conservative element in American liberalism’ (1973) 35 Review ofPolitics 489.79. For a philosophical perspective on this ‘alliance’, see JM Jacob Doctors and Rules.A Sociology of Professional Values (London: Routledge, 1988) pp 181–184.80. C Lawrence Medicine in the Making of Modern Britain 1700–1920 (London: Routledge,1994) pp 76–77.81. R Williams Culture and Society 1780–1950 (Harmondsworth: Pelican, 1962)pp 23–24.82. ‘The genius of poetry must work out its own salvation in a man. It cannot be matured bylaw and precept. That which is creative must create itself’: J Keats ‘Letters’, quoted in ibid,p 61.83. K Marx Economic and Philosophic Manuscripts of 1844 (London: Lawrence and Wishart,1970) pp 106–119.84. PB Shelley ‘A defence of poetry’, quoted in Williams, above n 81, p 59.85. Ibid, pp 23–24.86. Bellamy, above n 1; see W Morris ‘Bellamy’s “Looking Backward” ’ Commonweal21 June 1889, available at http://www.marxists.org/archive/morris/works/1889/backward.htm.



man to ‘take pleasure in his work under certain conditions’.87 What was needed wasnot the abolition of labour, but its transformation into ‘honourable and fitting work’.88

Set in the twenty-first century, News from Nowhere (1890) is Morris’s fictionalresponse to Bellamy’s ‘position. In it ‘commercial morality’ is extinct, money abol-ished and factories replaced by ‘banded-workshops’.89 The decommodification ofwork is central to the new order.90 The narrator is told that ‘men make for theirneighbours’ use as if they were making for themselves, not for a vague market ofwhich they know nothing and over which they have no control’.91 Producers areinstinctively self-governing. The external discipline of the factory owner is notrequired. ‘It is each man’s business to make his own work pleasanter and pleasanter,which of course tends to raising the standard of excellence, as no man enjoys turningout work which is not a credit to him . . .’.92

The new society does not repudiate scientific progress. But machines serve theworker rather than dominating him.93 Here, as elsewhere in Morris’s writings, labourfreed from ‘the brutalities of competitive commerce’ is equated with art.94 Althoughsectoral and defensive, the medical profession’s view of itself partook of this widerideal of free labour. As such, it chimed with Bevan’s aspirations for workers moregenerally.95

(d) From utopia to anti-utopia

At its inception then, the institutional form of the NHS promised to overcome thealienation inherent in much pre-war medical practice.96 Doctors would no longer haveto compete with each other for patients. Medical work would be fulfilling as an end initself, not simply a means of making a living. Individual clinical judgment wouldprevail over economic and technical concerns. Patients would be set free from thebrute necessity of ill-health; citizens bound together in a community of altruism andsolidarity. This vision was utopian, not only in the sense that it offered a better life forall, but also because it held out the prospect of transformed human relations inhealthcare and in the wider society. The banning of trade in surrogacy, organs, bloodand gametes, discussed earlier, was plausible against the backdrop of this broadervision. But plausibility is always contingent on the specific circumstances withinwhich an argument is made. The declining persuasiveness of anti-market prohibitions

87. W Morris ‘Useful work versus useless toil’ in AL Morton (ed) Political Writings ofWilliam Morris (London: Lawrence and Wishart, 1973) pp 86–108 at p 87.88. W Morris ‘Art and socialism’ in ibid, pp 109–133 at p 129.89. W Morris News from Nowhere (Oxford: Oxford University Press, 2003) pp 39–40.90. It is the ‘change which makes all the others possible’: ibid, p 79.91. Ibid, p 83.92. Ibid, p 84.93. See D Leopold ‘Introduction’ in ibid, p xvii. This reference to male workers is deliberate.Morris envisaged a continuing, if much more highly valued role for women as homemakers: seeibid, pp 51–53.94. Morris, above n 88, p 118.95. On Bevan’s formation as a socialist and a trade union organiser, see J Campbell Nye Bevanand the Mirage of British Socialism (London: Richard Cohen Books, 1997) ch 2.96. For an overview, see Timmins, above n 35, pp 102–109.



was noted in the discussion of the Brazier Report on surrogacy arrangements. The nextsection examines the important contribution of anti-utopian critique to this decline inplausibility.

4. ANTI-UTOPIAN CRITIQUE

(a) Context and themes

Anti-utopia has ‘stalked’ utopia since its beginnings in literature and political theory.97

But, as Krishan Kumar points out, ‘the relationship is not symmetrical or equal. Theanti-utopia is formed by utopia, and feeds parasitically on it . . . [It] draws its materialfrom utopia and reassembles it in a manner that denies the affirmation of utopia’.98

Anti-utopian critique is often closely related to a specific utopian vision, pickingout those negative aspects and unforeseen consequences which tend to thwart itspractical realisation. It will be seen that the NHS ideal, elaborated by Bevan andTitmuss, has been critiqued in just this way. Thus, the enclave is equated, not withshelter, but with closure and authoritarianism.99 By suppressing social processes, itpromotes stagnation rather than moral growth. The blueprinted apparatus expandsuncontrollably, absorbing freedom rather than releasing it. Ideals of peace andharmony are realised as repression and conformity. If anything is prefigured, it is ‘thehorror of a society in which utopian aspirations’ have actually been fulfilled.100 Fear,not hope, is the keynote. This anti-utopian challenge to the ‘NHS settlement’ wasvividly formulated in Professor Ian Kennedy’s seminal Reith Lectures of 1980.

Published as The Unmasking of Medicine, Kennedy’s intervention came at the endof a decade of intense conflict within the NHS.101 Doctors and other health staff hadtaken unprecedented industrial action in pursuit of pay claims. Government andconsultants clashed over the acceptability of private practice within NHS hospitals.The unravelling of the 1948 compromise between doctors and the state was matchedby a growing challenge to orthodox medicine from activist patient groups, focused onmental health and maternity care, for example. In its hostility to medical privilege,Kennedy’s argument is unmistakably influenced by these trends. Charting what hesaw as the errors of modern medicine, he proposed ethics, law and patient consum-erism as correctives. It is true that Kennedy was not the only or the first scholar toinvestigate and conceptualise medical law or medical ethics in Britain.102 Nonetheless,these lectures are worthy of particular attention owing to their wide dissemination andtheir keen reception by medical profession.103 Beyond this, it is clear that more was atstake than the demarcation of academic disciplines. Indeed, Kennedy’s later work asa regulator has allowed him to realise many of the ambitions for medical reformarticulated in the Reith Lectures.

97. K Kumar Utopia and Anti-Utopia in Modern Times (Oxford: Basil Blackwell, 1987) p 99.98. Ibid, p 100.99. Harvey, above n 41, p 182.100. Kumar, above n 97, p 100.101. Timmins, above n 35, pp 328–341.102. For an evaluation of Kennedy’s role in creating British medical law, see K VeitchThe Jurisdiction of Medical Law (Aldershot: Ashgate, 2007) pp 8–25.103. See J Miola Medical Ethics and Medical Law. A Symbiotic Relationship (Oxford:Hart, 2007) pp 40–46.



(b) ‘Unmasking medicine’

The anti-utopian target of The Unmasking of Medicine is not the NHS as such. Thoughhe condemns its neglect of prevention and primary care, Kennedy declares himself a‘committed supporter’ of the Service.104 Rather his main focus is on the model ofclinical medicine that Bevan and the medical leaders had installed at the heart of thehealthcare system.105 Doctors are represented in The Unmasking of Medicine asbenevolent guardians, paternalistically securing the population against the negativeconsequences of industrial society. Medicine in this mode aims at defusing politicaltensions through social control.106 Kennedy illustrates the point with a series offictional vignettes. For example, the 35-year-old housewife Mrs Jones ‘has grown todread and despise the tedium of her life’.107 The doctor who diagnoses her as ill andwho prescribes tranquilizers:

‘endows himself with power over her . . . [He] cannot change the economicand social order, but, with drugs he can stop her worrying about it. So that is whathe does. He returns her to the ranks of unhappy women who no longer feel thepain.’108

Mr Smith, exhausted from his ‘dull and tedious’ job on an assembly line, seeks a sicknote. His doctor’s decision is again more an exercise of power than of skill.109 Theseatomised and unhappy figures are sharply distinguished from the community ofpatients and staff conjured up by Richard Titmuss. Far from overcoming alienation,NHS medicine seems to reinforce it in Kennedy’s account.

The ‘apparatus of medicine’, so esteemed by Bevan, is thus seen to colonise broadareas of life. While liberating the citizen from the bodily necessity of illness, it alsosubjects her to an insidious kind of social coercion. It is supported in this effort by the‘vested interest’ of the pharmaceutical industry and the ‘connivance’ of the generalpublic.110 Such exchanges of ‘freedom for bread’ have been thematised in anti-utopianliterature since Dostoevsky’s Grand Inquisitor.111 For Kennedy, clinical power in thismode is underwritten by a vision of the doctor as ‘engineer/ mechanic applying thetechniques of medical science to cure a sick engine’.112 As Boltanski and Chiapellohave pointed out, the engineer was emblematic of mid-twentieth century society,embodying a general ‘belief in progress, hope invested in science and technology,productivity and efficiency . . . but also [a civic ideal of] institutional solidarity, thesocialisation of production, distribution and consumption . . . in pursuit of social jus-tice’.113 But this image is wholly inverted in Kennedy’s account. Rationalised medi-cine has led ironically to ‘the appearance of new magicians and priests wrapped in the

104. I Kennedy The Unmasking of Medicine (London: Granada, 1983) p 48.105. Ibid, p 48.106. This part of the lectures relies heavily on the ‘medicalisation of life’ thesis developed bycommentators such as Ivan Illich and Thomas Szasz; see ibid, pp 14 and 132.107. Ibid, p 12.108. Ibid, p 12.109. Ibid, p 8.110. Ibid, pp 13 and 22.111. ‘Man has no more agonising anxiety than to find someone to whom he can hand over withall speed the gift of freedom with which he was born’: F Dostoevsky The Brothers Karamazov(Harmondsworth: Penguin, 1958) p 298.112. Kennedy, above n 104, p 28.113. L Boltanski and E Chiapello The New Spirit of Capitalism (London: Verso, 2007) p 18.



cloak of science and reason’.114 Medical technology and clinical autonomy are unitedin spectacularly futile and costly interventions at the end of life. Echoing MaryShelley’s Frankenstein, Kennedy describes this as a ‘pursuit of immortality with therespirator symbolising some kind of Promethean eternity’.115 The respirator here canbe taken to stand for the medical system as a whole, conceived in anti-utopian termsas a machine out of control. It contrasts clearly with the cool benevolence andefficiency of the ‘theratron’, itself a microcosm of the utopian NHS, in Titmuss’saccount.

(c) Dissolving the enclave

For Kennedy, the dystopian features of contemporary medicine flow from its enclavestatus. Doctors, he says, ‘have a highly developed sense of territoriality’ which hasbeen ratified by government and the courts.116 In his academic writing, Kennedytrenchantly criticised the tendency of English courts to defer to medical opinion.117 Heargued that this had the twin defects of producing ‘idiosyncratic’ decision making andsheltering the doctor from ‘social responsibility’ to the rest of society.118 Thus,in discussing uncontrolled medical research, he notes that:

‘we, the consumers are rarely heard. But it is we who are affected by thesedevelopments, whether as patients or as members of the community . . . And if anyof us should be bold, or naïve, enough to raise his voice [in protest] . . . thescientific establishment reacts with wounded indignation.’119

Kennedy here calls forth an ideal audience of sovereign patient consumers. His actualaudience may not have conceived of themselves in this way. Indeed, he argueselsewhere that they have ‘chosen to surrender’ their power to medicine.120 Conse-quently, he implies, it is not just liberty, but the authentic appetite for liberty whichneeds to be restored. The medical profession is not directly addressed here. Kennedymerely intends doctors to overhear his condemnation of their high-handedness.121 Thisdemotion contrasts with the status of medical leaders as Bevan’s privileged and soleinterlocutors during the creation of the NHS. Taken together these rhetorical movesaim to fracture the harmonious community of staff, patients and the general public onwhich Titmuss rested his hopes for the NHS. In its place, The Unmasking of Medicineunites idealised healthcare consumers with their idealised tribunes: ethicists andlawyers like Kennedy himself.

Kennedy’s reform proposals proceed from this basic alliance. Sensitive clinicaldecisions could not be left to the ‘unarticulated judgment of individual medicalpractitioners’ or the ‘undefined collectivity of the medical profession’.122 The enclave

114. Kennedy, above n 104, p 25.115. Ibid, p 28.116. Ibid, p 28.117. For example, see I Kennedy Treat me Right. Essays in Medical Law and Ethics (Oxford:Clarendon, 1988).118. Kennedy, above n 104, pp 158, 119–120.119. Ibid, p 154.120. Ibid, p 152.121. On this dimension of rhetoric, see P Wander ‘The third persona: an ideological turn inrhetorical theory’ (1984) 35 Central States Speech Journal 197.122. Kennedy, above n 104, p 102.



would have to be dissolved into the general normative order. We are entitled, he says,‘to expect not only some regularity . . . in the decisions doctors arrive at, but also someconformity between these decisions and those which the rest of us might make’.123

Law and ethics are central to this levelling out. Indeed, they are deeply interconnectedin discharging this function. On the one hand, ‘good law’ reflects and promotes ‘goodmedical ethics’.124 On the other hand, ethics takes the distinctively legalistic form ofrules, principles and standards. These norms are clear, explicit and of general appli-cation. They allow medical practice to be understood and evaluated by laypeople, aswell as professionals, in the same terms as any other form of work.125 Kennedy’smodel holds out the promise of democratic control: ‘standards set by all of us’.126 Inpractice, he envisages that clinical and ethical norms will be generated by an extensivesystem of standing committees.127 The consumerist challenge is energised by the firstof Kennedy’s four basic moral principles: individual autonomy.128 Along with a supplyof reliable comparative information on care, effective choice requires the ethical andlegal elevation of the self-determining patient.

(d) Return of the commodity form

The effect of Kennedy’s legalistic proposals for dissolving the NHS enclave is tore-impose the commodity form on medical practice. This consequence can be illumi-nated with reference to the work of Evgeny Pashukanis.129 He argued that the forms ofmodern law are intimately connected with the dominant model of economic relationsin capitalist society.130 In previous eras, production was largely aimed at satisfying theimmediate needs of producers themselves. Markets were not widespread and moneyplayed a marginal role in the economy. The legal subject was defined by status. Guildsand other groups enjoyed privileges based on their distinct identity. Under capitalism,by contrast, production is carried on for sale in the market.131 In the process ofexchange, or contracting, quite heterogeneous things are brought into a relationship ofequivalence with each other or with a ‘third entity’, ie money. Abstracted from theirmaterial substance and from the circumstances of their production, they are treated ascommodities. They are ‘brought to market’ by their ‘guardians’ or owners.132 Asgeneralised systems for the exchange of equivalents, markets are only possible in theabsence of direct coercion. The exchanging parties must encounter each other as thefree and equal owners of property.133 Formal equality is achieved where commodityowners, like commodities themselves, are abstracted from their concrete identity and

123. Ibid, p 124.124. Ibid, p 125.125. See J Montgomery ‘Law and the demoralisation of medicine’ (2006) 26 Legal Studies 185at 206.126. Kennedy, above n 104, p 85.127. For details, see ibid, pp 128–130, 179–180.128. Ibid, p 121.129. EB Pashukanis Law and Marxism. A General Theory (London: Pluto, 1978).130. CJ Arthur ‘Editor’s introduction’ in ibid, p 13.131. On the transition between these modes of production, see K Marx, Capital. A Critique ofPolitical Economy vol. 3 (London, Penguin, 1981) 440–455.132. K Marx Capital. A Critique of Political Economy vol 1 (London: Penguin, 1976) p 178.133. K Marx Grundrisse. Foundations of the Critique of Political Economy (Harmondsworth:Pelican, 1973) p 163.



rendered equivalent.134 The legal subject under capitalism is, thus, stripped of rank andstatus, reduced to ‘a mathematical point, a centre in which a certain number of rightsis concentrated’.135 In theory, he is capable of owning anything and of exchanging itfor anything else. Furthermore, the system of commodity exchange requires thatdisputes be settled without diminishing the formal equality of legal subjects. Courtsachieve this by applying abstract rules of general applicability. The special legalprivileges of guilds are incompatible with this. Pashukanis claimed that ethics in acapitalist society are similarly marked by a concern with abstraction and formalequality.136 Commodification is achieved and maintained through a system ofmutually supporting economic, legal and moral equivalences.

The Unmasking of Medicine proposes just such a system of equivalences in health-care.137 Doctors and patients meet each other here as formal equals, not as theoccupants of different social ranks. Professional privileges are abolished. The clinicalrelationship is modelled, instead, as a process of contractual bargaining: consent beingexchanged in return for information and treatment. Modern bioethics, with its empha-sis on autonomy, gives moral expression to this model. The general, abstract capacityto own and exchange offers a basis for markets in formerly inalienable material suchas blood and gametes, as well as surrogacy services. Contract-style accountability alsocharacterises the envisaged relationship between practitioners and healthcare funders.Different medical interventions are to be compared and evaluated in terms of generalstandards. No longer obscured by the clinical judgment of the individual practitioneror his peers, they are standardised with reference to objective guidelines. As ColinLeys has argued, this process of ‘unbundling’ allows medical work to be priced forpurposes of financial audit and internal markets.138 It would also facilitate commercialtrade in medical services. The next section will consider the extent to which theseproposals have been implemented in practice and seeks to elaborate the distinctivevision underpinning them.

5. A NEW UTOPIA?

(a) The new NHS

The Unmasking of Medicine anticipated subsequent NHS reforms to a remarkabledegree. The last two decades have seen the development of an extensive regulatoryapparatus around the practice of clinical medicine in Britain. The opportunity to undothe 1948 settlement was presented by a series of scandals involving criminal behav-iour and extreme malpractice, which helped to undermine the legitimacy of profes-sional self-regulation.139 Thus, ultimate responsibility for clinical standards now rests

134. ‘This formal equality of distinct and different individuals is in exact homology with theequalisation of qualitatively different commodities in commodity exchange’: C MiévilleBetween Equal Rights. A Marxist Theory of International Law (London: Pluto, 2005) p 88.135. Pashukanis, above n 129, p 115.136. Ibid, p 85.137. For an insightful critique in this regard, see Jacob, above n 79, pp 165–172.138. C Leys Market-Driven Politics. Neo-Liberal Democracy and the Public Interest (London:Verso, 2001) p 189.139. See M Davies Medical Self-Regulation. Crisis and Change (Aldershot: Ashgate, 2007)pp 123 ff.



not with consultants, but with the (non-medical) chief executives of hospitals. NHSmanagement is now equipped with – and to an extent bound by – the explicit standardsof care laid down in National Service Frameworks, and by the guidance of theNational Institute for Health and Clinical Excellence (NICE) on the effectiveness ofdrugs and other interventions. A National Patient Safety Agency collects data onmedical accidents to enable the Service to learn from its mistakes.140 Beyond the NHS,initiatives such as the Cochrane Collaboration have entrenched ‘evidence-based medi-cine’ at the heart of clinical practice.141 Whereas a 1970 review of medical regulationcould assert that ‘the most effective safeguard of the public is the self-respect of theprofession itself’, in 2004, the President of the General Medical Council was movedto say that ‘medicine is far too important a subject simply to be left to doctors’.142 Theshift to external regulation is perhaps best represented by the work of the HealthcareCommission. Chaired by Ian Kennedy, the Commission inspects and audits NHS andprivate facilities, assessing the quality of management and care, and awarding annualperformance scores.143 These efforts are supported by private consultancies whichproduce ‘star ratings’ and league table rankings for hospitals.144

The effect of these reforms is to generate the system of equivalences between unitsof medical labour and between practitioners discussed in the previous section. Thistendency is reinforced by significant changes in the financial and operational structureof the NHS. Historically, NHS resources were distributed as block grants to NHSfacilities on the basis of established health needs.145 They were accounted for asexpenditure ex post at the end of the financial year. By contrast, since 1988 the Servicehas operated a ‘fixed-tariff’ system, whereby clinical interventions are priced inadvance allowing them to be transacted over ex ante by different providers andfunders. Furthermore there has been growing commercial involvement in the provi-sion of care following a ‘concordat’ between the Department of Health and the privatesector in 2000.146 A historic gap in investment has been made good through public–private partnerships. These give control over the delivery of ancillary and, in somecases, clinical services to consortia of financiers, construction companies and healthbusinesses.147 The formerly autonomous medical professional is increasingly likely tobe an employee, responsible to corporate entities and their shareholders.148

The public face of the current reform programme is the so-called ‘choice agenda’.According to the Department of Health, the NHS is now ‘in the business of customerservice’.149 As such, it must seek to ‘place real power – the power of making real

140. For an introductory discussion, see A Davies ‘Don’t trust me I’m a doctor – medicalregulation and the 1999 NHS reforms’ (2000) 20 Oxford Journal of Legal Studies 437.141. See S Iliffe From General Practice to Primary Care. The Industrialisation of FamilyMedicine (Oxford: Oxford University Press, 2008).142. Quoted in Davies, above n 139, pp 299 and 305.143. Ibid, p 320.144. AM Pollock NHS plc. The Privatisation of Our Health Care (London: Verso, 2004)pp 201–202.145. Ibid, pp 73–75.146. Ibid, p 66.147. R Aldred ‘NHS LIFT and the new shape of neo-liberal welfare’ (2008) 95 Capital andClass 31.148. For example, see T Heller ‘Branson sees primary care as Virgin territory’ (2008) 71 HealthMatters 14.149. Department of Health Building on the Best. Choice, Responsiveness and Equity in theNHS Cmnd 6079, 2003, pp 23 and 63.



choices about healthcare and exerting real influence over those choices – in the handsof all the users of services . . .’.150 It is clear that the patient is to be empowered as anindividual through personal choice, rather than through any collective or politicalstructures, whether local or national.151 Underpinning this is an apprehended desire forchoice, which is variously distilled from the spirit of the times or revealed by opinionpolling, citizen juries and other ‘listening exercises’.152 Specific initiatives haveincreased the number of medicines available ‘over the counter’ (ie without prescrip-tion), allowed patients to choose a hospital for their operations beyond their local areaand extended choice over the manner and place of childbirth. The ‘choice agenda’ isnot simply focused on the behaviour of patients. Along with explicit clinical gover-nance and transparent pricing, patient choice can be an important means of disciplin-ing medical labour. Moreover, it gives a further impetus to privatisation. Thus, theKing’s Fund, a leading UK health think-tank, affirmed that ‘as long as the supply-sideof healthcare remains dominated by professionals, responsiveness may beimpossible’.153

It is true that most NHS care remains free at the point of use. However, takencumulatively these reforms mean the end of the NHS as a distinctive enclave ofnon-market production and consumption. The Service will be increasingly defined,not by its concrete activities and institutional form, but by its more intangible ‘ethos’and ‘values base’.154 As with other franchise operations, the ‘NHS’ brand will floatfree, a quality mark attached to diverse sources of health information and serviceproviders.155 Indeed, the ‘NHS’ logo has already become more prominent at eye levelin Britain (eg on buildings, signs and vehicles) at precisely the same time as theinstitution itself has been hollowed out.

(b) Utopia without a topos

Anti-utopian rhetoric has been prominent in explaining and justifying these reforminitiatives. Thus, it is common to describe the inherited Service as a ‘monolithiccentrally run monopoly provider’ or the ‘second largest employer in Europe after theRed Army’.156 It was in this vein that Alan Milburn, former Health Secretary andpolitical architect of the ‘new NHS’, often returned in speeches to ‘his childhood ona County Durham council estate – where the council not the tenants chose what colourthe front door was painted’.157

The case for ‘reform’ is carefully inserted into a supportive re-reading of thehistory, one which leapfrogs the collectivism of the 1940s in recovering authenticVictorian values. According to Milburn’s successor John Reid, the ‘early Labour

150. Ibid, p 12.151. Ibid, p 13.152. Ibid, pp 16–19.153. J Appleby, A Harrison and N Devlin What is the Real Cost of More Patient Choice?(London: King’s Fund, 2003) p 36.154. N Timmins ‘A time for change in the British NHS: an interview with Alan Milburn’ (2002)21 Health Affairs 129 at 130.155. Department of Health, above n 149, p 48.156. A Milburn Diversity and Choice within the NHS. Speech to the NHS Confederation24 May 2002, available at http://www.dh.gov.uk/en/News/Speeches/Speecheslist/DH_4000764;D Blunkett ‘Time to slash NHS red tape The Sun 8 July 2008.157. D Walker ‘Vision of the future’ (2005) 51 Public Eye 8 at 9.



movement recognised the role of self-advance, self-help and individual effort insocial liberation . . . the defining characteristic of social change is the energy, effort,ambition and application of individuals themselves’.158

In the 1940s, the population were deferential and grateful for benefits doled out bypaternalistic professionals working for the state.159 However, the emphasis now is on‘liberating the potential of each individual as an individual’.160 The desire for choicearises, on these accounts, as an organic consequence of rising prosperity.161 The NHSsimply has to adapt to a ‘more avidly consumerist world’.162 Government radicalismis here legitimised by a fatalistic historicism. The role of politicians, banks andcorporations in creating an ‘avidly consumerist world’ is conveniently obscured fromview.

The adoption of anti-utopian positions by ‘reforming ministers’ is consistent withthe decline of the political left, in Britain and elsewhere, since the late 1970s.163 TheKeynesian differentiation of post-war society into market and non-market spheres hadgiven real force to the prefigurative vision of the NHS shared by Bevan and Titmuss.But, as Jameson notes, a given utopia is only ‘momentarily beyond reach of thesocial’.164 It is ever vulnerable to the ‘all-encompassing forward momentum’ ofpolitical and economic change.165 Beset by social conflict and fiscal burdens, theKeynesian system went into terminal crisis in the 1970s.166 The crisis was resolvedthrough an extension of market disciplines, associated with neo-liberal reform, aimedat blurring the border between public and private sectors. The incipient commerciali-sation of the NHS, discussed above, is a notable example of this process. Seen fromthis perspective, contemporary anti-utopianism is not simply directed at the substanceof the socialist vision. It challenges the enclave form itself.

Zygmunt Bauman traces this formal challenge to a general decline in the role ofterritory as a frame for political aspiration and social reform. He argues that the worldof the nineteenth and twentieth centuries was ‘blatantly and self-consciously territo-rial’.167 Power and sovereignty were understood through spatial metaphors and definedby their geographical boundaries. The nation-state was the pre-eminent form of whatBauman calls ‘solid modernity’. We might add that the Keynesian welfare state wasthe fullest realisation of that form. As discussed above, utopian thought partook of thisterritorial imaginary. The good life was held to proceed from a certain order and thatorder would be achieved spatially through mapping and planning. This was the literalground (topos) for engagement between ‘stern yet benevolent rulers and their obedient

158. J Reid ‘Increasing aspiration and improving life chances’ in Fabian Commissionon Life Chances Life Chances. What Does the Public Really Think about Poverty (London:Fabian Society, 2005) pp 35–39.159. Timmins, above n 154, at 133.160. A Milburn Speech to the Fabian Society New Year Conference 17 January 2005, availableat http://www.guardian.co.uk/politics/2005/jan/17/thinktanks.uk.161. J Reid Choice Speech to the New Health Network 16 July 2003, available athttp://www.dh.gov.uk/en/News/Speeches/Speecheslist/DH_4071487.162. Timmins, above n 154, at 133.163. See Kumar, above n 39, p 62.164. Jameson, above n 38, p 16.165. Ibid, p 16.166. On the crisis and its resolution, see A Glyn Capitalism Unleashed. Finance, Globalisationand Welfare (Oxford: Oxford University Press, 2007).167. Z Bauman ‘Utopia with no topos’ (2003) 16 History of the Human Sciences 11 at 14.



yet happy subjects [and also] the world of sages – whose job was to secure thebenevolence of rulers and the happiness of the ruled’.168

However, the territorial imaginary has lost its pre-eminence over the last threedecades of neo-liberal restructuring. The commodity form has penetrated deeply intosocial life including, as we have seen, healthcare and the human body itself. With-drawal into a social enclave, like the NHS, is no longer possible.169 Moreover, thephenomenon of globalisation means that capitalist market relations have spread overthe whole globe. There are ‘no more plots left to which one could escape and in whichone could hide’.170 As Bauman puts it, ‘the “u” of “utopia” bereaved by the “topos” isleft homeless and floating, no more hoping to strike its roots – to “re-embed” ’.171

(c) Process-utopia

Structural change and anti-utopian critique mean that aspirations for the future are nolonger framed in terms of collective planning and territorial engagement. Reformersemphasise their own pragmatism, stigmatising opponents as ideological. However,this does not mean that all notion of the good life has been abandoned. On thecontrary, happiness is to be pursued, but only through individual choices. In this newdispensation, weightlessness and mobility are prized over the solidity and predictabil-ity associated with enclave utopias. As Bauman puts it:

‘ “place” (whether physical or social) has been replaced by the unendingsequence of new beginnings, inconsequentiality of deeds has been substituted forfixity of order, and the desire for a different today has elbowed out concern with abetter tomorrow.’172

According to Ruth Levitas, this vision is nonetheless utopian, albeit of a ‘self-denying’ and ‘self-hating’ kind.173 Its novelty lies in its idealisation, not of a perfectend-state, but of social processes themselves. The most important of these is, ofcourse, the free market.174 As David Harvey has argued, neo-liberal reformers propose‘a utopianism of process in which individual desires, avarice, greed, drives, creativity,and the like [can] be mobilised through the hidden hand of the perfected market to thesocial benefit of all’.175

Utopian aspirations in this mode are directed to an unfettered, unencumbered andunending process of free bargaining and choosing. This is the positive desire accom-panying the anti-utopian rhetoric of health ministers and sympathetic academic com-mentators. Not only individual choice, but the marketisation of public services ischaracterised as open-ended in this way. Thus, for Alan Milburn, ‘Yesterday’s solutionmay not be the answer to tomorrow’s challenge. Reform is not a process that starts oneday and ends the next: it must go on and on’.176

168. Ibid, at 16.169. Jameson, above n 38, p 20.170. Bauman, above n 167, at 16.171. Ibid, at 22; emphasis removed.172. Ibid, at 2.173. Levitas, above n 36, at 298.174. Harvey, above n 41, p 175.175. Ibid, p 175.176. Milburn, above n 160.



The current task of the state is not simply, or primarily, to secure the materialwell-being of all its citizens. Rather, it must ensure an ever more equitable ‘distribu-tion of aspiration’ and choice.177 The new utopian commonsense is embraced as suchin the abovementioned King’s Fund Report, which asserts that, since ‘choice definesthe democratic capitalist state’, the case for its extension ‘scarcely needs to beargued’.178

CONCLUSION

This paper has charted the rise and fall of a utopian vision of healthcare in the UK. Thesubstance of this vision related to the nature of medical work and the use of healthcareservices by patients. The utopian form was given equal stress in this discussion.Non-commodified medicine was realised within the enclave of the NHS. Legislativebans on commercial surrogacy and the sale of human tissue were plausible within thecontext of these wider arrangements. They were sustained, in other words, as much bypolitical commonsense as by more abstract ethical reasoning. However, the utopianvision of 1948 has been challenged in principle and undermined in practice. A newanti-utopian commonsense repudiates the enclave and supports the generalisation ofthe commodity form in medicine as elsewhere. It was argued that the current market-isation of healthcare rests, in its turn, on a distinctive utopian vision; but one whichemphasises process over spatial form. This new conjuncture of practical reforms andpolitical commonsense tends to support the removal of the legislative restrictionsconsidered above.

It has been seen that critique played an important role in reshaping the understand-ing and organisation of post-war healthcare. But, given the entrenched nature of theongoing reform process, it may be asked whether any significant critique of currentarrangements is possible. A starting point for such a critique is suggested by the workof Boltanski and Chiapello, mentioned above, which focuses on changes in thecapitalist organisation of work over the last four decades.179 In their account, the late1960s were characterised by a widespread rejection of the bureaucratic and hier-archical structures then prevalent in industry and in other sectors. An important strandof this critique, which they term ‘artistic’, was directed at the lack of control andauthentic choice available to workers under these arrangements.180 They show howcapitalism survived this period of crisis, in part, through absorbing the critique andrestructuring work arrangements to meet some of the demands raised. This process,which they label ‘recuperation’, is evident in healthcare too.181

As has been seen, a similar and related demand for control and authentic choice,raised by Ian Kennedy and others, has informed the restructuring of healthcare in theUK. Any renewed critique must focus on the manner in which this critique has beenrecuperated and, to an extent, distorted. Boltanski and Chiapello argue that the mainmechanism by which capitalism can respond to the desire for authenticity is throughexpressing it as a demand for products or services.182 Individual autonomy, the desire

177. Reid, above n 158, pp 35–39.178. Appleby at al, above n 153, p 14.179. Boltanski and Chiapello, above n 113.180. Ibid, pp 36–40.181. Ibid, p 424.182. Ibid, p 443.



for authentic choice, can only be extended through an expansion of markets. The cruxis, of course, that the commodity form presumes a system of equivalences which is thevery antithesis of authenticity.

The crowding out of non-market values is examined in Allyson Pollock’s influen-tial book NHS plc. The Privatisation of Our Health Care (2004). This offers apersuasive evaluation of current reforms in terms of value for money and the evidencebasis for change. However, it also includes an ‘artistic critique’ of the emerging marketsystem of healthcare. This focuses on the material spaces of the NHS: hospitals andgeneral practitioners’ surgeries which are now commonly subject to the control ofprivate ventures. In the quest to maximise shareholder returns, spare land is sold offfor ‘golf courses, luxury homes and supermarkets’.183 NHS premises themselves nowhost fast-food outlets and chain stores, where once voluntary organisations served thepublic.184 To draw a parallel from recent cultural theory, a modernist faith in progress,under the direction of charismatic artist-doctors, has been forsaken for a kind ofmarket populism that celebrates the ‘decorated sheds’ of the retail park.185

Pollock depicts the new NHS in ‘anti-pastoral’ terms, quite at odds with theoriginal vision of Bevan and Titmuss. Patients pay to watch TV on their own, ratherthan free in a common room. The rationalisation of care systems means that doctorsnow frequently treat unknown patients breaking the continuity of care. The ‘camara-derie of the doctors mess is lost – in fact it is now usually deserted’.186 The genuine-ness of patient emancipation has also been challenged. As Rachel Aldred has shown,in practice, the public have little control over the direction of NHS reform.187 Priva-tisation brings with it stricter rules of commercial secrecy. Commercially producedhealth data are subject to monopoly control under intellectual property law. Long-termpublic–private contracts preclude democratic control. Notwithstanding the publicityabout choice and responsiveness, no local challenge to the policy of marketisation willbe entertained. Kenneth Veitch has noted that, although patients may choose betweendoctors, hospitals and other services in the NHS, they may not reject choice itself.188

The demand for autonomy is conceded, then recuperated. New forms of dominationchannel and confine patient choice. Ian Sinclair’s remarks on the costly and ill-fatedMillennium Dome, built on a public–private basis at Greenwich, may be transposed tothe vastly greater project of commercialising the NHS. The Dome, he says, saw:

‘bemused civilians, badgered into celebration and rehearsed spontane-ity . . . A slow drip of millennial sound-bites, repetitions of meaningless statistics.Tyranny by consensus. Send us your ideas and we’ll tell you what you want.’189

183. Pollock, above n 144, p 29.184. Ibid, p 112.185. F Jameson Postmodernism or the Cultural Logic of Late Capitalism (London: Verso,1991) p 2.186. Pollock, above n 144, p 113.187. Aldred, above n 147, at 40–42.188. Veitch, above n 102, p 42.189. I Sinclair ‘All change. This train is cancelled’ London Review of Books 13 May 1999.



Documents

Visions of utopia: markets, medicine and the National Health Service