Liminality and the lived experience of law in medicine: the legal consciousness of physicians in encounters with people living as undocumented migrants

Abstract

BACKGROUND: Legal consciousness studies have fostered limited interest in the lived experience of law in medicine.

Further knowledge of how law impacts physicians and their praxis is needed, as these professionals often unknowingly serve as legal actors, gatekeeping healthcare access. The physician’s position as arbiter of rights to healthcare access demonstrates itself most acutely for people living in the legal liminality of undocumented migration. As liminal personae, the undocumented are often defined as being suspended between legal and ‘illegal’ – liminal in temporality, territory, and law.

Further, biopolitical negotiations surrounding their deservingness give rise to a multitude of structural barriers, impacting their health, impeding healthcare access, and transforming them into liminal patients. In Sweden, current law explicitly relies on physicians to assess whether liminal patients are in need of care that cannot be deferred.

If deemed deferrable, care is to be denied. The law has been decried as distinctly incompatible with medicine, a risk to patient-safety, and inapplicable in medical praxis.

AIM & METHOD: Departing from the observation that encountering liminal patients in medical praxis could amplify law’s incompatibility with the existing norms and procedures of medicine, the present study aimed to illuminate physicians’ lived experiences of law in this context, through the lens of liminality. Founded on in-depth qualitative interviews with 46 physicians, this abductive constructivist grounded theory study provides an original contribution to research on the lived experience of law in medicine by offering two novel dimensions of legal consciousness theory specific to medical contexts: legal disavowal and medicolegal anomie.

FINDINGS: Legal disavowal positions physicians as unthreatened in the face of legal hegemony, as they agentically maintain the bearing of the medical compass; balancing medical need, medical reasoning, medical skill, and medical ethics exclusively. In this position, physicians are able to guide patients through the liminal encounter, dismissing the demands of law. In doing so, they attempt to establish various humanitarian corridors for the liminal patient, challenging biopolitics, and rationalising playing tug of war with law. Legal communitas in this schema emerges as a distinct feature in physicians’ legal consciousness, offering them opportunities to circumvent the law by constructing new forms of legality through creative panaceas. Moreover, they perceive legal knowledge in relation to the issue of access as superfluous to medical praxis. Yet, misconceptions surrounding the law can also morph physicians into inadvertent tricksters who accidentally misguide liminal patients away from structure. Medicolegal anomie, conversely, casts physicians into the chaos and ‘crisis’ of spontaneous collapse. Care is perceived as belonging to the state, and the physician is left trapped between their employer and the liminal patient, with no recognisable pathway forward. In this tension, they stumble to reconcile the demands of law and the cardinal directions of medicine. Extreme feelings of incongruence and a form of contagious powerlessness transform the physician into a disoriented guide. In this schema, legal communitas takes on an ephemeral form, restricted to a trustworthy few, and guided by a sense of shared values, venturing to construct humanitarian corridors out of unworkable situations. Disoriented physicians can also come to embody the inadvertent trickster, leading patients towards often consequential dead ends. For physicians who fought the law and lost, journeying alongside the liminal patient in medicolegal alienation can become the only bearable pathway onward.

Yet, here, the threat of hegemonic law remains ever present, and the personal cost of overcoming collapse and the memory of legal communitas can haunt physicians perpetually.

CONCLUSION: The present study demonstrates how understanding medicine as liminal Hinterlands and Shadowlands to the nation’s border can capture and encapsulate the lived experience of law in liminal encounters, informing the constitution of legal consciousness in this underexplored context. The findings show how physicians are forced to navigate the threshold between the societally commended act of medical praxis, and structurally condemned undocumentedness; a liminal space constructed and compounded by perceived ‘illegality’ in encounters. Here, the blurring of boundaries distorts both medical praxis and the law, through the physician’s response to restrictive structure.

Ultimately, when legal residency status dictates the patient’s deservingness, the weight of powerlessness in interactions transforms the physician’s medical, ethical, and legal consciousness, within and outside of conventional medical praxis.