Protecting the Vulnerable explores the reality of patient control and choice in health care and analyzes how decisions should be made on behalf of those deemed incapable of making decisions. The contributors, distinguished experts from the disciplines of medicine, ethics, theology, and law, look at the complex problem of autonomy and consent in health care and clinical research today from an illuminating perspective--its impact on the vulnerable members of society. The essays move from the exploration of lingering paternalism in health (...) care to the acute dilemma of treatment of and research on newborn babies. In covering both general and specific problems the collection reveals how exploitation can occur when the right of autonomy is eroded and where informed consent is illusory. Particularly vulnerable groups, such as children and people with mental handicaps, are discussed alongside cases where the vulnerability is itself an issue. Other areas covered include: `gesture' suicides, the practical problems of doctors in dealing with dependent patients, and the limits of proxy consent. All health care professionals, ethicists, policy makers, and lawyers currently engaged in the study or practice of health care ethics will find Protecting the Vulnerable to be a vital source of information for many years to come. (shrink)

Placebo treatments, like sugar pills and saline injections, are effective in treating pain and perhaps a host of other conditions. To use placebos most effectively, however, doctors must mislead patients into believing that they are receiving active medications. While placebo deception is surprisingly common, its legality has rarely been tested. In November 2006, the American Medical Association (AMA) adopted a new ethics provision categorically prohibiting doctors from using placebos deceptively. In so doing, the AMA shifted the legal landscape, making it (...) almost certain that courts will decide that placebo deception violates informed consent requirements. I argue that the AMA's new policy is overbroad, insensitive to patient preferences, and likely to have unforeseen consequences. While deception is often exploitative, placebo deception can genuinely benefit patients. Absent stronger evidence to justify a ban than we currently have, deceptive placebos should be treated as scarce medical resources--used sparingly but not categorically prohibited. (shrink)

A growing number of medical professionals claim a right of conscience, a right to refuse to perform any professional duty they deem immoral—and to do so with impunity. We argue that professionals do not have the unqualified right of conscience. At most they have a highly qualified right. We focus on the claims of pharmacists, since they are the professionals most commonly claiming this right.

Federal efforts beginning in the 1990's have successfully increased pediatric research to improve medical care for all children. Since 1997, the FDA has requested 800 pediatric studies involving 45,000 children. Much of this research is "non-beneficial"; that is, it exposes pediatric subjects to risk even though these children will not benefit from participating in the research. Non-beneficial pediatric research (NBPR) seems, by definition, contrary to the best interests of pediatric subjects, which is why one state supreme court has essentially prohibited (...) it. It also appears that the only plausible rationale for this research is utilitarian, as it risks some children for the good of all. But that rationale is troubling. This Article answers two related questions: (1) What is the appropriate legal relationship between NBPR and the "best interests of the child" standard? (2) What is the ethical justification for this research? I argue that courts should hold that the "best interests" standard governs pediatric research. But, contrary to existing case law, courts must consider the benefits to each child, including pediatric subjects, from a policy that permits NBPR, and not simply consider that a non-beneficial protocol presents more risk than potential benefit to a child. Moreover, I argue that the justification for the practice need not be utilitarian. There is no need to appeal to the greater good to justify the research because each child has reason to endorse a policy permitting NBPR where there is a very low ceiling on acceptable risk, and each child has reason to participate in a practice from which she benefits. More controversially, I argue that each child, like other persons, has reason to help others when she can do so at little to no cost to herself. The Article then highlights practical implications of the offered justifications. (shrink)

Current General Medical Council guidelines state that any doctor who does not wish to carry out a non-therapeutic circumcision (NTC) on a boy must invoke conscientious objection. This paper argues that this is illogical, as it is clear that an ethical doctor will object to conducting a clinically unnecessary operation on a child who cannot consent simply because of the parents’ religious beliefs. Comparison of the GMC guidelines with the more sensible British Medical Association guidance reveals that both are biased (...) in favour of NTC and subvert standard consent procedures. It is further argued that any doctor who does participate in non-therapeutic circumcision of a minor may be guilty of negligence and in breach of the Human Rights Act. In fact, the GMC guidance implies that doctors must claim conscientious objection if they do not wish to be negligent. Both sets of guidelines should be changed to ensure an objective consent process and avoid confusion over the ethics of NTC. (shrink)

Currently, any dentist in the UK who is HIV-seropositive must stop treating patients. This is despite the fact that hepatitis B-infected dentists with a low viral load can continue to practise, and the fact that HIV is 100 times less infectious than hepatitis B. Dentists are obliged to treat HIV-positive patients, but are obliged not to treat any patients if they themselves are HIV-positive. Furthermore, prospective dental students are now screened for hepatitis B and C and HIV, and are not (...) allowed to enrol on Bachelor of Dental Surgery degrees if they are infectious carriers of these diseases. This paper will argue that: (i) the current restriction on HIV-positive dentists is unethical, and unfair; (ii) dentists are more likely to contract HIV from patients than vice versa, and this is not reflected by the current system; (iii) the screening of dental students for HIV is also unethical; (iv) the fact that dentists can continue to practise despite hepatitis B infection, but infected prospective students are denied matriculation, is unethical; and (v) that the current Department of Health protocols, as well as being intrinsically unfair, have further unethical effects, such as the waste of valuable resources on ‘lookback’ exercises and the even more damaging loss of present and future dentists. Regulation in this area seems to have been driven by institutional fear of public fear of infection, rather than any scientific evidence or ethical reasoning. (shrink)

This book brings together new work by some of the foremost writers in the health care law arena. It presents exciting new insights,drawing on feminist theory and methodology to further our understanding of health care law. Whilst the book makes a real contribution to both feminist debates and the analysis of this area of law, it is also accessible to the undergraduate student who is approaching this area of legal scholarship and feminist jurisprudence for the first time. Its focus is (...) not merely on those issues which have traditionally excited feminist attention, but also includes those subjects which have proved of less apparent interest such as confidentiality, medical research, medical negligence and professional discipline. (shrink)

Various authors debate the question of whether neuroscience is relevant to criminal responsibility. However, a plethora of different techniques and technologies, each with their own abilities and drawbacks, lurks beneath the label “neuroscience”; and in criminal law responsibility is not a single, unitary and generic concept, but it is rather a syndrome of at least six different concepts. Consequently, there are at least six different responsibility questions that the criminal law asks – at least one for each responsibility concept – (...) and, I will suggest, a multitude of ways in which the techniques and technologies that comprise neuroscience might help us to address those diverse questions. In a way, on my account neuroscience is relevant to criminal responsibility in many ways, but I hesitate to state my position like this because doing so obscures two points which I would rather highlight: one, neither neuroscience nor criminal responsibility are as unified as that; and two, the criminal law asks many different responsibility questions and not just one generic question. (shrink)