The study focuses on the phenomenon of crime-causing (criminogenic) law. It includes a review of related studies on such laws and their criminal side-effects, the change in the legislator’s liability for effects of enacted laws, and the effects of the legislator’s afflatus on the potential criminogenic effects of law. Of special concern are cases where the legislator is aware of the potential criminogenic side-effects of a new law but carelessly neglects them. The study evaluates the tool for detection of probable (...) criminogenic effects proposed by a special EU study group. It is shown that the underlying assumptions in the creation of this tool do not ensure the detection of a significant portion of the ways in which a new law can cause criminogenic effects, and provides no sound basis for deciding whether to approve or to reject a new law. (shrink)
There is no co-ordinated focus on liabilities arising from nurses’ medical interventions in terms of occupational, administrative, civil legal and criminal activities. However, the Turkish Criminal Code, the Turkish Medical Ethics Code of Practice, and guidelines for patients’ rights offer some framework for the relevant ethical principles and responsibilities of nurses. The aim of this study was to investigate the evaluation of nursing students’ training in their legal liabilities. The sample consisted of 309 students who were taking a course (...) entitled ‘Nurses’ legal liabilities under Turkish criminal and civil law arising from medical interventions’. Data were obtained by means of self-administered questionnaires and McNemar’s test was used to evaluate the answers. In conclusion, after their training, a great majority of the students demonstrated an improvement in terms of their percentage of correct answers relating to malpractice. This does not, however, mean that they will not face malpractice charges after graduating, but their increased awareness of the issue may encourage them to make more effort to reduce the risk of mistakes. It is recommended that nursing faculty carry out studies into medical malpractice, that they focus more on this subject in nursing education, and that all nursing schools review their curricula from the point of view of malpractice. (shrink)
This paper describes the different dimensions of the relation between moral reflection and legislative processes. It discusses some examples of the institutionalisation of moral reflection. It is argued that the relation between ethics and law is still an actual and relevant question. Ethics also has to reflect on its own role in political life. The paper defends the relevance of a theological perspective on the relation between law and ethics. In the last part it is argued that the modality of (...) relation between ethics and law depends on the specific character of social domain. (shrink)
To describe the content of practice guidelines on euthanasia and assisted suicide (EAS) and to compare differences between settings and guidelines developed before or after enactment of the euthanasia law in 2002 by means of a content analysis. Most guidelines stated that the attending physician is responsible for the decision to grant or refuse an EAS request. Due care criteria were described in the majority of guidelines, but aspects relevant for assessing these criteria were not always described. Half of the (...) guidelines described the role of the nurse in the performance of euthanasia. Compared with hospital guidelines, nursing home guidelines were more often stricter than the law in excluding patients with dementia (30% vs 4%) and incompetent patients (25% vs 4%). As from 2002, the guidelines were less strict in categorically excluding patients groups (32% vs 64%) and in particular incompetent patients (10% vs 29%). Healthcare institutions should accurately state the boundaries of the law, also when they prefer to set stricter boundaries for their own institution. Only then can guidelines provide adequate support for physicians and nurses in the difficult EAS decision-making process. (shrink)
This brief tour of American law has demonstrated a little of the breadth and currency of legal liability actions which affect nursing. As health care changes and nursing roles change with it, so too will the nature of liability in this area. The American penchant for litigation is such that the chances of disentangling nurses from the continued onslaught of negligence litigation seem remote.
Four years ago, as colleagues in our university's law and medical schools, we designed and began offering a course for law, medical, and nursing students, studying professionalism and professional ethics by reading and discussing current and earlier images of nurses, doctors, and lawyers in literature. We wanted to make professional ethics, professional culture, and professional education the objects of study rather than simply the unreflective consequences of exposure to professional language, culture, and training. We wanted to do it in (...) an interdisciplinary course where aspiring professionals could share their self-conceptions and their conceptions of each other, and we wanted to do it by using stories, our primary means for organizing experience and claiming meaning for it. This article tells the story of that experience: why we did it; how we did it; what we learned from doing it. (shrink)
This article draws analogies between the making of norms by contract, often seen as typical of private law, and by subordinate law-making, often seen as a typically public function and for public bodies. These analogies are set in the context of those rules which govern the relations between universities and their students, as the same types of rule may find their source in a range of legal sources: prescription, royal charter, parliamentary legislation or contract. Of these different sources, the (...) common law courts long accepted that chartered corporations, created by exercise of royal prerogative, were entitled to make subordinate legislation (known as byelaws) for the furthering of their purposes for both members and non-members, despite this law-making being extra-parliamentary. This article suggests how this power to make byelaws in chartered corporations may apply to chartered universities, noting the difficulties arising from the allegedly eleemosynary nature of these bodies and from the possible coexistence of statutory powers. It then examines the way in which the contract between a student and a university arises, and how this contract may form the legal basis of student rules, whether these rules are conceived as terms of the contract itself or as expressions of a unilateral power in the university arising from the contract. A subsequent article will compare the review of student rules on the grounds of public law principle and of contractual regulation. (shrink)
August 2006 marked the 10th anniversary of landmark legislation when Israel’s parliament passed the unique Patient’s Rights Law. This law underscores the importance of medical ethics in Israeli society. During a seminar at the Shaare Zedek School of Nursing, third-year students performed a qualitative research study investigating ethical issues arising in the field of nursing, and how nursing staff dealt with these issues in relation to the law. The research was conducted using semistructured questionnaires. The results (...) showed that the staff participants knew the law, but did not differentiate between legal and ethical problems. The establishment of a framework for dealing with these issues would help to promote professional ethics, encourage broad-based agreements related to ethical decisions, reduce ethical conflict, and increase implementation of the law on patients’ rights. (shrink)
Machine generated contents note: Table of Cases xi -- Table of legislation xv -- Introduction: Medicine Men, Outlaws and Voluntary Euthanasia 1 -- 1. To Kill or not to Kill; is that the Euthanasia Question? 9 -- Introduction-Why Euthanasia? 9 -- Dead or alive? 16 -- Euthanasia as Homicide 25 -- Euthanasia as Death with Dignity 29 -- 2. Euthanasia and Clinically assisted Death: from Caring to Killing? 35 -- Introduction 35 -- The Indefinite Continuation of Palliative Treatment 38 (...) -- Withholding or Withdrawing Treatment 44 -- The Principle of Double Effect 54 -- Physician Assisted Suicide 60 -- Mercy Killing 64 -- Conclusions 66 -- 3. Consent to Treatment but Not to Death 69 -- Introduction-Why Consent? 69 -- Without Consent 70 -- Killing and Consent 73 -- Valid Consent, Freely Given? 74 -- Old Enough to Consent 80 -- Deciding for Others 82 -- Conclusions-A Consent Too Far? 93 -- 4. Autonomy, Self-determination and Self-destruction 95 -- Introduction-Autonomous Choices 95 -- Choosing to Die-Suicide and Autonomy 100 -- Suicidal Intentions 107 -- Autonomous Clinical Discretion 110 -- Deciding to Live or Die-Whose Decision? 112 -- 5. Living Wills and the Will to Die 115 -- Introduction 115 -- I Know My Will 118 -- This is My Will 121 -- I Will Decide 128 -- Will My Will be Done? 134 -- Where There's a Will 137 -- Conclusions 143 -- 6. Is Euthanasia a Dignified Death? 145 -- Introduction-Why Dignity? 145 -- Needing Dignity 146 -- Finding Dignity 149 -- Achieving Dignity in Dying 151 -- Dignifying Death 157 -- 7. Conclusions: Dignified Life, Dignified Death and Dignified Law 165 -- Select Bibliography 175 -- Index 183. (shrink)
Author Jeremy Waldron has thoroughly revised thirteen of his most recent essays in order to offer a comprehensive critique of the idea of the judicial review of legislation. He argues that a belief in rights is not the same as a commitment to a Bill of Rights. This book presents legislation by a representative assembly as a form of law making which is especially apt for a society whose members disagree with one another about fundamental issues of principle.
Over the last years, Norway has revised its animal welfare legislation. As of January 1, 2010, the Animal Protection Act of 1974 was replaced by a new Animal Welfare Act. This paper describes the developments in the normative structures from the old to the new act, as well as the main traits of the corresponding implementation and governance system. In the Animal Protection Act, the basic animal ethics principles were to avoid suffering, treat animals well, and consider their natural (...) needs and instincts. In addition, a principle for balancing our duties towards animals with the needs and interests of humans was expressed by the formulation unnecessary suffering. These principles (only with slightly different formulations) are retained in the new act. The novelty of the new act is shown by its explicit intention to promote respect for animals and its recognition of animals’ intrinsic value. Whereas intrinsic value is only given a symbolic function, the notion of respect is intended to have practical consequences. One interpretation of respect for animals is taking the animal’s integrity—and not only welfare—into account. Another is to see the introduction of respect as a call to animal keepers to provide animals with welfare exceeding the minimum requirements. In several respects, the legal system now seems to leave more responsibility to the individual animal keeper—and to citizens in general. I argue that if the authorities really do want to promote respect for animals, they must at the same time initiate activities to achieve this. In my perspective the challenge is to provide adequate measures to achieve in practice the intended respect for animals expressed in the new act. (shrink)
In this article, we sketch a new approach to law and ethics. The traditional paradigm, exemplified in the debate on liberal moralism, becomes increasingly inadequate. Its basic assumptions are that there are clear moral norms of positive or critical morality, and that making statutory norms is an effective method to have citizens conform to those norms. However, for many ethical issues that are on the legislative agenda, e.g. with respect to bioethics and anti-discrimination law, the moral norms are controversial, vague (...) or still evolving. Moreover, law proves not to be a very effective instrument. Therefore, we need a new paradigm, both for descriptive and for normative analysis. This interactive paradigm, as a normative position, can be summarised in two theses. The process of legislation on ethical issues should be structured as a process of interaction between the legislature and society or relevant sectors of society, so that the development of new moral norms and the development of new legal norms may reinforce each other. And legislation on ethical issues should be designed in such a way that it is an effective form of communication which, moreover, facilitates an ongoing moral debate and an ongoing reflection on such issues, because this is the best method to ensure that the practice remains oriented to the ideals and values the law tries to realise. (shrink)
Recently (2010–2011) new criminal legislation to combat illegal income and corruption was passed and publicly discussed in Lithuania. Within the list of the new legal measures, special attention should be paid to criminalisation of illicit enrichment, establishment of a model of extended property confiscation, reinforcement of responsibility for corruption-related offenses, a provision that not only property but also personal benefits may constitute a bribe. It can be seen from the explanatory letters attached to the draft laws and the political (...) debate that the new regulation is expected to achieve decisive breakthrough in the fight against corruption and illegal income. However, without any doubt as to the necessity to fight against those social evils, the author presents critical evaluation of the reform by applying the test of principles of criminal law, legal language and practical effectiveness. By making critical conclusions that the new criminal legislation deliberately lightens the prosecution’s goal of incrimination and the burden of proof, the author warns about the purposive instrumental nature of the new laws, which are balancing on the threshold of legitimacy. In the article the author reveals crucial shortcomings of the new legislation: in some aspects it lacks legal certainty, in other aspects it ignores the principles of guilt, presumption of innocence and proportionality as well as the conception of criminal law as a last resort (ultima ratio). As a result, the new legal means against illegal income and corruption leave space for applying inadequate repression beyond their intended purpose, in addition, they criminalise human conduct that is insufficiently dangerous and create preconditions for senseless criminal prosecutions and violation of human rights. (shrink)
The contemporary State power is concentrated in the hands of the legislative, executive and judicial powers, which is traditionally referred to as the principle of the division of State power. The separation of State power and the attribution of the function of the interpretation and application of statutory law to courts were like “letting the genie out of the bottle”. Having started with a mechanical application of the statutory law, the courts, armed with various doctrines on interpretation of law, have (...) in the meantime started creating rules themselves and turned into rivals to the legislator. In addition to having started making the law, the courts have also begun exerting control over both the legislative (constitutional justice) and the executive (administrative justice) powers. The acknowledgement of the fact that by interpreting and applying the law, the court is simultaneously making it, gives rise to a host of questions, e.g.: if the court is the guardian of law, who is the guardian of the court? How to separate the interpretation of law from its creation? If the court acts as a lawmaker, then maybe in future, the court will turn into a sole lawmaker?, etc. (shrink)
Radical constructivists appeal to self-legislation in arguing that rational agents are the ultimate sources of normative authority over themselves. I chart the roots of radical constructivism and argue that its two leading Kantian proponents are unable to defend an account of self-legislation as the fundamental source of practical normativity without this legislation collapsing into a fatal arbitrariness. Christine Korsgaard cannot adequately justify the critical resources which agents use to navigate their practical identities. This leaves her account riven (...) between rigorism and voluntarism, such that it will not escape a paradox that arises when self-legislation is unable to appeal to external normative standards. Onora O'Neill anchors self-legislation more firmly to the self-disciplining structures of reason itself. However, she ultimately fails to defend sufficiently unconditional practical norms which could guide legislation. These endemic problems with radical constructivist models of self-legislation prompt a reconstruction of a neglected realist self-legislative tradition which is exemplified by Christian Wolff. In outlining a rationalist and realist account of self-legislation, I argue that it can also make sense of our ability to overcome anomie and deference in practical action. Thus, I claim that we need not make laws but can make them our own. (shrink)
This paper examines the ethical and legal duties of confidentiality owed by the nurse, with special reference to obligation to the employer. The main focus is on exploring the parameters of that duty and determining circumstances in which it might be ethically and legally justifiable to disclose confidential information. It is submitted that the obli gation to preserve the confidence of the patient or employer is relative rather than abso lute. In exceptional cases, disclosure is permissible in order to prevent (...) harm to others or to promote a greater public good. A number of suggestions for reform are also made, with a view to reinforcing nurses' ethical and legal rights to exercise discretion to dis close confidential information in appropriate cases in order to protect themselves from victimization by employers. Cet article passe à l'examen les devoirs éthiques et légales de la confidence que les infirmiers/ères doivent obligatoirement à leur employeur. Le point de mire est l'exploration des donnés de cette obligation, et la détermination des circonstances dans lesquelles il est légitime, éthiquement et légalement, d'exposer de l'information confidentielle. Il est suggéré que l'obligation de préserver la confiance du malade ou de l'employeur est relative plutôt qu'absolu. Dans des cas exceptionels pourtant, la révélation d'information est permisible pour prévenir le mal des autres ou pour promouvoir un plus grand bien public. Quelques suggestions pour réformes sont proposées en vue du renforcement des droits éthiques et légales des infirmiers/ères d'exercer la discretion en ce qui concerne la révélation d'information dans des cas bien choisis, et de les protéger des représailles de l'employeur. Dieser Artikel prüft die ethischen und legalen Pflichten des Vertrauens, die das Pflegepersonal dem Arbeitsgeber schuldet. Das Zentrum des Arguments ist eine Untersuchung dieser Pflichten, und eine Festsetzung der Umstände, in welchen es ethisch und rechtlich möglich ist, Information bekannt zu machen. Es ist anerkennt, dass die Pflicht des Vertrauens des Patienten oder des Arbeitsgebers zu behalten, eher relativ als absolut ist. In aussergewöhnlichen Fällen jedoch ist die Bekanntgabe von Information erlaubt, um das Böse zu verhindern und das Gute aller zu fördern. Eine Anzahl von Vorschlägen für Reformen sind gemacht, mit der Absicht, die ethischen und legalen Rechte des Pflegepersonals, in gegebenen Fällen Information bekannt zu machen, zu verstärken, und es von ungerechter Behandlung eines Arbeitsgebers zu schützen. (shrink)
In an effort at ethical reform, Taiwan recently revised the Hospice Palliative Care Law authorising family members or physicians to make surrogate decisions to discontinue life-sustaining treatment if an incompetent terminally ill patient did not express their wishes while still competent. In particular, Article 7 of the new law authorises the palliative care team, namely the physicians, to act as sole decision-makers on behalf of the incompetent terminally ill patient's best interests if no family member is available. However, the law (...) fails to provide guidance as to what constitutes the patient's best interests or what specific procedures the treating physicians should follow, and so has raised constitutional concerns. It may be difficult to translate ethical reform into law but it is not impossible if essential requirements are carefully followed. First, there must be substantial nexus between the purpose of the statute and the measures provided under the statute. Second, advocates need to convince the public that futility or waste has amounted to a public health emergency so as to justify lower procedural requirements. Third, a remedy or compensation should be available if the surrogate decisions have not been appropriately made. Fourth, minimum procedural safeguards are necessary even though the statute is intended to reduce the procedural burdens of making surrogate decisions on behalf of incompetent patients who lack family members and did not express their wishes while still competent. (shrink)
Margaret Otlowski investigates the complex and controversial issue of active voluntary euthanasia. She critically examines the criminal law prohibition of medically administered active voluntary euthanasia in common law jurisdictions, and carefully looks at the situation as handled in practice. The evidence of patient demands for active euthanasia and the willingness of some doctors to respond to patients' requests is explored, and an argument for reform of the law is made with reference to the position in the Netherlands (where active voluntary (...) euthanasia is now openly practiced). (shrink)
From Hippocrates to paternalism to autonomy : the new hegemony -- From autonomy to consent -- Consent, autonomy, and the law -- Autonomy at the end of life -- Autonomy and pregnancy -- Autonomy and genetic information -- Autonomy and organ transplantation -- Autonomy, consent, and the law.
0n a lucid, concise volume, Jeremy Waldron defends the role of legislation, presenting it as an important mode of governance. Aristotle, Locke and Kant emerge as proponents of the dignity of legislation. Waldron's arguments are of obvious importance and topicality, especially in countries that are considering the introduction of a Bill of Rights. The Dignity of Legislation is original in conception, trenchantly argued and very clearly presented, and will be of interest to a wide range of scholars (...) and thinkers. (shrink)
When seen in the historical context of psychiatry's relatively recent discovery of violence and risk, along with society's adoption of more risk-averse attitudes, the Mental Health Act 2007 in England and Wales is an ethical and proportionate measure.
As one of the most massive and successful business sectors, the pharmaceutical industry is a potent force for good in the community, yet its behaviour is frequently questioned: could it serve society at large better than it has done in the recent past? Its own internal ethics, both in business and science, may need a careful reappraisal, as may the extent to which the law - administrative, civil and criminal - succeeds in guiding (and where neccessary contraining) it. The rules (...) of behavior that may be considered to apply to today's pharmaceutical industry have emerged over a very long period and the process goes on. Even the immensely detailed standards for quality, safety and efficacy laid down in drug law and regulation during the second half of the twentieth century have their limitations as tools for ensuring that the public interest is well served. In particular, national and regional regulatory agencies are heavily dependent on industrial data for their decision-making, their standards and competence vary, and even the existing network of agencies does not cover the entire world. What is more there are many areas of law and regulation affecting the industry, concerning for example the pricing of medicines, the conduct of clinical studies, the health protection of workers and concern for the environment. In some fields it is indeed hardly possible to maintain standards through regulation. Professor N.M. Graham Dukes, a physician and lawyer with long term experience in industrial research management, academic study and international drug policy, provides here a powerfully documented analysis into the way this industry thinks, acts, and is viewed, and examines the current trends pointing to change. *Provides a balanced picture of the current role of the pharmaceutical industry in society *Includes indices of conventions, laws, and regulations; as well as judicial and disciplinary cases *This is the only book addressing the legal implications of big pharma activities and ethical standards. (shrink)
The metaphysics of legalism -- The individual in context -- Rationality in context -- Freedom in context -- Strong legalism or the absent theory of legislation -- Legitimacy and legitimation : from strong legalism to legisprudence -- From proxy to trading off : the principles of legisprudence -- Legisprudence and the duties of power : a legisprudential assessment of rational legislation.