Medicine and Law

This paper argues that in the absence of general duties to rescue a woman may, at any time, terminate an unintended pregnancy even if the foetus is a person. However the rights of the foetus restrict the procedures one may use. In particular only an evictionist procedure may be used. Furthermore the argument presented does not rely on any act of balancing the rights of the woman against the rights of the foetus. There is no “clash of rights” involved. This (...) paper also replies to the objection that this line of reasoning leads to the implausible conclusion that one may evict a trespasser even if this causes his death. -/- In this paper I assume that every person (including, for the sake of argument, the foetus) has an exclusive right to control her own body (Control Self-Ownership, CSO). This right excludes the possibility of general enforceable duties to rescue. However it does not, unlike full self-ownership, prevent the State from taxing individuals to help others. -/- Firstly I argue that there are two different ways to terminate the pregnancy. The first and most common is an abortion, this will result in the death of the foetus in the process. The second one is an eviction, this merely involves the removal of the foetus from the womb. Depending on the state of the pregnancy the foetus may or may not survive the eviction. -/- Secondly I argue that, assuming the foetus does not have an acquired to remain within the womb, it would be a violation of the rights CSO of the woman to prohibit her from evicting the foetus, even if this results in its death. -/- Thirdly I argue that the foetus would not have the right to remain within the womb in case of unintended pregnancy. This is because, to hold otherwise, would impose a non-voluntary positive obligation on the woman, in contravention with her rights to control her body. -/- Fourthly I argue that to allow the woman to have an abortion, even when an eviction is not possible, would amount to a violation of the rights of the foetus. Hence an eviction is a procedure which respects the rights of both the foetus and the woman. As such this solution does not result in a “clash of rights”, which may have to be resolved on consequentialist grounds. -/- Finally I argue that the reasoning of this paper does not require us to hold that one may evict a trespasser from one's property if this will result in his death. -/- Therefore, those who want to prohibit women from having an abortion need to show that the foetus is a person. For those who wish to prohibit women from evicting the foetus the burden is an even greater one: they must in addition show that there are strong (enforceable) positive duties to rescue (this would amount to a denial of CSO). This however raises difficulties for those who would wish to prohibit evictions in countries, like the US and England and Wales, where the law does not normally recognise such duties. By prohibiting only evictions without making failure to assist those in danger (even at great cost to oneself) a crime they would be violating equality before the law. (shrink)

Some people oppose abortion on the grounds that fetuses have full moral status and thus a right to not be killed. We argue that special obligations that hold between mother and fetus also hold between parents and their children. We argue that if these special obligations necessitate the sacrifice of bodily autonomy in the case of abortion, then they also necessitate the sacrifice of bodily autonomy in the case of organ donation. If we accept the argument that it is obligatory (...) to override a woman’s bodily autonomy for the sake of an unborn child’s survival, we must continue to override the bodily autonomy of parents to ensure the survival of their living children, until the parent no longer has a special obligation to their child to the same degree as their special obligation to the fetus. And if the life of a child is truly more important than the bodily autonomy of its parents, as must be the case to force women to carry unwanted pregnancies to term, this should remain true until such a time that their children are no longer considered their responsibility. Thus, parity of reasoning suggests that policies compelling the gestation of a fetus should be accompanied by policies compelling organ donation. (shrink)

Informed consent, when given by proxy, has limitations: chiefly, it must be made in the interest of the patient. Here we critique the standard approach to parental consent, as present in Canada and the UK. Parents are often asked for consent, but are not given the authority to refuse medically beneficial treatment in many situations. This prompts the question of whether it is possible for someone to consent if they cannot refuse. We present two alternative and philosophically more consistent frameworks (...) for paediatric proxy consent. The first allows meaningful consent (parents may say ‘yes’ or ‘no’ to treatment), provided that parents are medically informed/competent and intend the health and well-being of their child. In the second solution, medical practitioners or the state consent for treatment, with parents only being consulted to help give insight to the child’s circumstances. While we contend that either of these two options is superior to the insincerity of the present paradigm, we suggest that the first solution is preferable. (shrink)

Under the current Mental Health Act of England and Wales, it is lawful to perform deep brain stimulation in the absence of consent and independent approval. We argue against the Care Quality Commission's preferred strategy of addressing this problematic issue, and offer recommendations for deep brain stimulation-specific provisions in a revised Mental Health Act.

The right to bodily integrity has become a notable controversial issue within moral, political and legal discourse and this right is regarded as one of the most precious rights that persons have, alongside the right to life. Recent scholarly debate has focused attention on the content, scope and force of this right and has lead to the recognition that a better understanding of the nature of this right will contribute to determining whether and why a multitude of clinical and research (...) activities in medical practice should be seen as permissible or impermissible. The essays selected for this volume examine topics such as pregnancy and reproduction, altering children’s bodies, transplantation, controversial modifications and surgeries, and experimentation and dead bodies. This is the first collection of scholarly research articles to provide a comprehensive overview of the ethical and legal aspects of the right to bodily integrity and its implications in theory and practice. (shrink)

The High Court continues to exercise its inherent jurisdiction to make declarations about interventions into the lives of situationally vulnerable adults with mental capacity. In light of protective responses of health care providers and the courts to decision-making situations involving capacitous vulnerable adults, this paper has two aims. The first is diagnostic. The second is normative. The first aim is to identify the harms to a capacitous vulnerable adult’s autonomy that arise on the basis of the characterisation of situational vulnerability (...) and autonomy as fundamentally opposed concepts or the failure to adequately acknowledge the conceptual relationship between them at common law. The second part of this aim is to draw upon developments in analytic feminist philosophy to illustrate how standard approaches to autonomy are ill-equipped to capture the autonomy issues of capacitous vulnerable adults when their decisions regarding care and treatment are at stake. The second (normative) aim is to develop an account of self-authorised, intersubjective autonomy on the basis of analytic feminist insights into the relational practices of recognition. This account not only attempts to capture the autonomy of capacitous vulnerable adults and account for the necessary harms to their autonomy that arise from standard common law responses to their situational vulnerability, it is also predicated on the distinctions between mental capacity, the satisfaction of conditions for informed consent and the exercise of autonomy, meaning that it is better placed to fulfil the primary aim of the inherent jurisdiction – to facilitate the autonomy of vulnerable adults with capacity. (shrink)

Background: Biomedical research nowadays is increasingly carried out in multinational and multicenter settings. Due to disparate national regulations on various ethical aspects, such as informed consent, there is the risk of ethical compromises when involving human subjects in research. Although the Declaration of Helsinki is the point of reference for ethical conduct of research on humans, national normative requirements may diverge from its provisions. The aim of this research is to examine requirements on informed consent in biomedical research in Germany, (...) Poland, and Russia to determine how each national regulatory framework relates to the provisions of the Declaration of Helsinki. Methods: For this analysis, we conducted a search of the legal databases “Gesetze im Internet” for Germany, “Internetowy System Aktow Prawnych” for Poland, and “ГAPAHT – Garant” for Russia. The search was complemented by a review of secondary literature contained in the databases Google Scholar, PubMed, Polish National Library, and eLibrary ru. We have identified 21 normative regulations containing provisions on informed consent in clinical research in all three countries. The content of these documents was systematically categorized and analyzed. Results: The normative framework in all three countries shows a strong commitment towards the core ethical principles of research envisaged in the Declaration of Helsinki. Nevertheless, provisions on informed consent vary between these three countries. The differences range from the method and language in which information should be provided, through the amount of information required to be disclosed, to the form of documenting consent or withdrawal. In the case of research on vulnerable groups, these differences are particularly visible. Conclusions: The identified differences can negatively impact the ethical conduct of international clinical studies. Attention needs to be paid that flexibilities within national regulations are not misused to undermine the protection of research subjects. Achieving global or regional legislative harmonization might prove impossible. Such lack of legal consensus reinforces the significance of the international ethical agreements. (shrink)

This essay experiments with Kant’s writings on rational religion distilled through the Strange Case of Dr Jekyll and Mr Hyde as canonical confrontations with primal problems of evil. It suggests boundaries between Stevenson’s characters and their occupations comparable to the those conflicted in the Kantian university, namely, law, medicine, theology, and philosophy (which makes a short anticipatory appearance in his earlier text on rational religion). With various faculties it investigates diffuse comprehensions—respectively, legal crime, biogenetic transmission, and original sin—of key ethical (...) modes: will, inheritance, incorporation, freedom, duty, obligation, love, living, and killing to conclude on the possible logic of evil (or evils of logic) collateral and possibly innate to Kant’s comprehension of radical evil. (shrink)

If medical complicity is understood as compliance with a directive to act against the professional's best medical judgment, the question arises whether it can ever be justified. This paper will trace the contours of what would legitimate a directive to act against a professional's best medical judgment (and in possible contravention of her oath) using Joseph Raz's service conception of authority. The service conception is useful for basing the legitimacy of authoritative directives on the ability of the putative authority to (...) enable subjects to comply better with reasons that already apply to them. Hence, the service conception bases the legitimacy of practical authority on a certain kind of greater knowledge or expertise. This helps to focus the conundrum regarding complicity on the clash of expertise between the medical expert and the governing body tasked with coordinating behaviour and otherwise devising rules for the social good. The ethical dilemma presented by a hypothetically legitimate directive to act against a professional's best medical judgment also serves to highlight the moral dimension of one's duty to obey a legitimate authority. (shrink)

Aryeh Goldberg compellingly argues for a Narrative Coherence Standard (NCS) to bolster existing methods of assessing patients' mental capacity. But his account fails to distinguish between the cognitive abilities of children and adults; consequently, worries may be raised about the scope of the NCS, in particular when we consider child patients. In this article, I argue the NCS cannot plausibly apply to children. Since children's self-conception does not arrive fully formed — but rather is a product of both incomplete cognitive (...) development and socializing factors — I claim children may not possess a sufficiently intimate knowledge of self, and therefore a sufficiently coherent sense of self, as Goldberg demands. Therefore, we should either revise the NCS to accommodate children, adopt an incremental view of consent, or revert to the relevant form of the MacArthur competence criteria to establish children’s capacity to consent. (shrink)

Shared Decision Making (‘SDM’) is one of the most significant developments in Western health care practices in recent years. Whereas traditional models of care operate on the basis of the physician as the primary medical decision maker, SDM requires patients to be supported to consider options in order to achieve informed preferences by mutually sharing the best available evidence. According to its proponents, SDM is the right way to interpret the clinician-patient relationship because it fulfils the ethical imperative of respecting (...) patient autonomy. However, there is no consensus about how decisions in SDM contexts relate to the principle of respect for autonomy. In response, I demonstrate that in order to make decisions about what treatment they will or will not receive, patients will be required to meet different conditions depending on the approach proponents of SDM take to understanding personal autonomy. Due to the fact that different conceptions of autonomy yield different obligations, I argue that if physicians and patients satisfied all the conditions described in standard accounts of SDM, then SDM would undermine patient autonomy. (shrink)

According to the High Court in England and Wales, the primary purpose of legal interventions into the lives of vulnerable adults with mental capacity should be to allow the individuals concerned to regain their autonomy of decision making. However, recent cases of clinical decision making involving capacitous vulnerable adults have shown that, when it comes to medical law, medical ethics and clinical practice, vulnerability is typically conceived as opposed to autonomy. The first aim of this paper is to detail the (...) problems that arise when the courts and health care practitioners respond to the vulnerability of capacitous adults on the basis of such an opposition. It will be shown that not only does the common law approach to vulnerability fail to adequately capture the autonomy of capacitous vulnerable adults, the conception of vulnerability and autonomy in oppositional terms leads to objectionably paternalistic health care responses that undermine the autonomy of vulnerable patients as well as clinical and legal interventions that violate their autonomy. In response, the second aim of this paper is to show that the concepts of autonomy and vulnerability are necessarily entwined and, on that basis, the focus should be on promoting the autonomy of capacitous vulnerable adults where possible. In order to make this case, the paper explains the limitations of standard approaches to the autonomy of vulnerable adults and, in their place, offers a conception of legitimate, self-authorised autonomy that is fundamentally dependent on intersubjective practices of recognition. (shrink)

A legal analysis on the informed consent of the patient primarily requires considering the common law, regardless of solutions provided by the malpractice statutes and a promising constitutional protection route, despite the ascertainment of some preventable shortcomings. This paper aims to offer a comprehensive review on the genesis, advancement and basis of the U.S. legal protection of the informed consent in the healthcare extent, to afterwards carry out a brief comparative study with the Spanish regulation.

We propose six guideposts that states and hospitals should follow to respect disability rights when designing policies for the allocation of scarce, lifesaving medical treatments. Four relate to criteria for decisions. First, do not use categorical exclusions, especially ones based on disability or diagnosis. Second, do not use perceived quality of life. Third, use hospital survival and near-term prognosis (e.g., death expected within a few years despite treatment) but not long-term life expectancy. Fourth, when patients who use ventilators in their (...) daily lives (e.g., home ventilation) present to acute care hospitals, their personal ventilators should not be reallocated to other patients. Fifth, designate triage officers to assess patients individually on the basis of objective medical evidence, not stereotypes or assumptions. Sixth, include disability rights advocates in policy development and dissemination. (shrink)

This Essay explains why model policies proposed or adopted in response to the COVID-19 pandemic that allocate scarce medical resources by using medical evidence to pursue two core goals—saving more lives and saving more years of life—are compatible and consonant with disability law. Disability law, properly understood, permits considering medical evidence about patients’ probability of surviving treatment and the quantity of scarce treatments they will likely use. It also permits prioritizing health workers, and considering patients’ post-treatment life expectancy. These factors, (...) when based on medical evidence and not inaccurate stereotypes, are legal to consider even if they disadvantage some patients with specific disabilities. It then discusses the ethical advantages of triage policies that use medical evidence to save more lives and years of life, which I call “evidence-based triage,” focusing on the benefits of these policies for patients with disabilities. In doing so, I explain why recent critiques err by treating people with disabilities as a monolith, overlooking the political disadvantages of less-visible victims, and treating the social origins of scarcity as a justification for saving fewer lives. Evidence-based triage parallels other policy responses to the COVID-19 pandemic, like physical distancing and postponement of medical procedures, which may burden patients with specific disabilities or medical conditions but are nevertheless justified because they save more patients. (shrink)

It is well documented that people with moderate-to-severe traumatic brain injury (TBI) can undergo personality changes, including becoming more impulsive in terms of how they behave. Legal guidance and academic commentary support the view that impulsiveness can render someone decisionally incompetent as defined by English and Welsh law. However, impulsiveness is a trait found within the healthy population. Arguably, impulsiveness is also a trait that gives rise to behaviours that should normally be tolerated even when they cause harm to the (...) person enacting the behaviours. The purpose of this paper is to show why both of these considerations present as significant challenges to the law in England and Wales. (shrink)

This book makes an important contribution to ongoing efforts in the fields of medical law and bioethics to answer the challenges posed by the limitations of the principle of respect for autonomy, especially as these pertain to human research ethics. The principle of respect for autonomy seems to have become firmly embedded in human research ethics since its inclusion in the 1947 Nuremberg Code, which was a response to atrocities committed by Nazi doctors. Nonetheless, there is an increasing awareness of (...) the limitations of the principle of respect for autonomy and the underlying conceptualisations of human autonomy. (shrink)

Since the end of World War II, most guidelines governing human research seem to have relied on the principle of respect for autonomy as a key, though not sole, criterion in assessing the moral validity of research involving human participants.1 One explanation for this apparent reliance on respect for autonomy may be that respect for autonomy, made effective through the practice of obtaining informed consent, functions as a useful proxy when dealing with competent adults for the more complex principle of (...) respect for human dignity that underpins much of the moral discourse in this area. If this explanation holds, then assessment of the moral licitness of research involving human individuals whose autonomy is limited in some way requires a deeper analysis of the ‘thicker’ concepts of human dignity, since we cannot rely on respect for autonomy to do the work of respect for human dignity where autonomy (understood as a capacity to consent based on adequate information) is not present, is limited or is compromised. (shrink)

This book makes an important contribution to ongoing efforts in the fields of medical law and bioethics to answer the challenges posed by the limitations of the principle of respect for autonomy, especially as these pertain to human research ethics. The principle of respect for autonomy seems to have become firmly embedded in human research ethics since its inclusion in the 1947 Nuremberg Code, which was a response to atrocities committed by Nazi doctors. Nonetheless, there is an increasing awareness of (...) the limitations of the principle of respect for autonomy and the underlying conceptualisations of human autonomy. (shrink)

This chapter examines the explicit and implicit roles that the concept of beneficence plays in the guidelines that govern biomedical research involving humans. We suggest that the role beneficence is actually playing in the guidelines is more comprehensive than is commonly assumed. The broader conceptualisation of beneficence proposed here clarifies the relationship of beneficence to respect for autonomy. It does this by showing how respect for autonomy is at the service of beneficence rather than in tension with it.

Respect for autonomy has become a fundamental principle in human research ethics. Nonetheless, this principle and the associated process of obtaining informed consent do have limitations. This can lead to some groups, many of them vulnerable, being left understudied. This book considers these limitations and contributes through legal and philosophical analyses to the search for viable approaches to human research ethics. It explores the limitations of respect for autonomy and informed consent both in law and through the examination of cases (...) where autonomy is lacking (infants), diminished (addicts), and compromised (low socio-economic status). It examines alternative and complementary concepts to overcome the limits of respect for autonomy, including beneficence, dignity, virtue, solidarity, non-exploitation, vulnerability and self-ownership. It takes seriously the importance of human relationality and community in qualifying, tempering and complementing autonomy to achieve the ultimate end of human research - the good of humankind. (shrink)

According to many of its proponents, shared decision making ("SDM") is the right way to interpret the clinician-patient relationship because it respects patient autonomy in decision-making contexts. In particular, medical ethicists have claimed that SDM respects a patient's relational autonomy understood as a capacity that depends upon, and can only be sustained by, interpersonal relationships as well as broader health care and social conditions. This paper challenges that claim. By considering two primary approaches to relational autonomy, this paper argues that (...) standard accounts of SDM actually undermine patient autonomy. It also provides an overview of the obligations generated by the principle of respect for relational autonomy that have not been captured in standard accounts of SDM and which are necessary to ensure consistency between clinical practice and respect for patient autonomy. (shrink)

Two chapters -- "Common Arguments about Abortion" and "Better (Philosophical) Arguments About Abortion" -- in one file, from the open access textbook "Introduction to Ethics: An Open Educational Resource" edited by Noah Levin. -/- Adults, children and babies are arguably wrong to kill, fundamentally, because we are conscious, aware and have feelings. Since early fetuses entirely lack these characteristics, we argue that they are not inherently wrong to kill and so most abortions are not morally wrong, since most abortions are (...) done early in pregnancy before consciousness and feeling develop in the fetus. Furthermore, since the right to life is not the right to someone else’s body, fetuses might not have the right to the pregnant woman’s body, and so she has the right to not allow the fetus use of her body; this further justifies abortion, at least, until technology allows for the removal of fetuses to other wombs. Since morally permissible actions should be legal, abortions should be legal. -/- In the course of arguing for these claims, we: -/- discuss how to best define abortion; dismiss many common “question-begging” arguments that merely assume their conclusion, instead of giving genuine reasons for them; refute some often-heard “everyday arguments” about abortion; explain why some influential philosophical arguments against abortion are unsuccessful; provide some positive arguments that at least early abortions are not wrong; briefly discuss the ethics and legality of later abortions, and more. -/- Little of this discussion should be taken as absolute “proof” of anything, as this is merely a reasoned introduction to the issues: much more needs to be discussed, always. (shrink)

The English cases of Charlie Gard and Alfie Evans involved a conflict between the desires of their parents to preserve their children’s lives and judgments of their medical teams in pursuit of clinically appropriate therapy. The treatment the children required was clearly extraordinary, including a wide array of advanced life-sustaining technological support. The cases exemplify a clash of worldviews rooted in different philosophies of life and medical care. The article highlights the differing perspectives on parental authority in medical care in (...) England, Canada, and the United States. Furthermore, it proposes a solution that accommodates for both reasonable parental desires and professional medical opinion. This is achieved by looking at concepts of extraordinary therapy, best interest, reasonable parenthood and medical objections. (shrink)

English law is unambiguous that legal personality, and with it all legal rights and protections, is assigned at birth. This rule is regarded as a bright line that is easily and consistently applied. The time has come, however, for the rule to be revisited. This article demonstrates that advances in fetal surgery and (anticipated) artificial wombs do not marry with traditional conceptions of birth and being alive in law. These technologies introduce the possibility of ex utero gestation, and/or temporary existence (...) ex utero, and consequently developing human beings that are novel to the law. Importantly, therefore, the concepts of birth and born alive no longer distinguish between human beings deserving of legal protection in the way originally intended. Thus, there is a need for reform, for a new approach to determining the legal significance of birth and what being legally alive actually encompasses. Investigating the law of birth is of crucial importance, because of the implications of affording or denying the subjects of new reproductive technologies rights and protections. A determination of the legal status of the subject of fetal surgery or an artificial womb will determine what can and cannot be done to each entity. Moreover, the status afforded to these entities will drastically impact on the freedoms of pregnant women. (shrink)

In this chapter I explicate and evaluate the concept of medical error. Unlike standard philosophical approaches to analyzing medical phenom- ena in the abstract, I instead address medical error specifi cally within the context of an embodied social world. I illustrate how, as a deeply contex- tual concept, medical error is inextricably tied to the social conditions— and concrete, powerful interests—of the particulars in which it is found. -/- I begin with an analysis that demonstrates the relational quality of medi- (...) cal error, as a functional, outcome-oriented concept, evaluating the origin and context of the term’s emergence, and connecting it to a similarly contextual concept, “standard of care.” I move on to note the concern- ing implications of medical error identifi cation and measurement when viewed through an intersectional standpoint. To do so, I discuss what intersectional approaches can help reveal about our contemporary social world of medicine and public health. Intersectional approaches, as I will explain, focus on how intersections of social identity can unmask social structures that negatively impact groups and individuals. It appears, as -/- I will suggest, that disparities in social goods (e.g., social standing, edu- cation, wealth) complicate our identification of medical error, itself, and compound concerns of equity and access to medical goods for those who have diminished expectations for health. (shrink)

Scholars have mostly analyzed information from mental health practitioners, attorneys, and institutions to critique mental health practices in the War on Terror. These sources offer limited insights into the suffering of detainees. Detainee accounts provide novel information based on their experiences at Guantánamo. Mohamedou Ould Slahi’s Guantánamo Diary is the only text from a current detainee that provides a first-person account of his interrogations and interactions with health professionals. Despite being advertised as a diary, however, it has undergone redaction from (...) American government officials. This article examines Slahi’s account of his interrogations and representations of mental health at Guantánamo and considers its role within the narrative function of the nation. At stake is the right of detainees to narrate, scholars to critique medical practices in the War on Terror, and the nation’s attempts to control its narration. (shrink)

Despite the lack of evidence for their effectiveness, the use of physical restraints for patients is widespread. The best ethical justification for restraining patients is that it prevents them from harming themselves. We argue that even if the empirical evidence supported their effectiveness in achieving this aim, their use would nevertheless be unethical, so long as well known exceptions to informed consent fail to apply. Specifically, we argue that ethically justifiable restraint use demands certain necessary and sufficient conditions. These conditions (...) are that the physician obtain informed consent for their application, that their application be medically appropriate, and that restraints be the least liberty-restricting way of achieving the intended benefit. It is a further question whether their application is ever medically appropriate, given the dearth of evidence for their effectiveness. (shrink)

This paper summarizes the seminar AI in Medicine in Context: Hopes? Nightmares? that was held at the Centre for Ethics at the University of Toronto on October 17, 2017, with special guest assistant professor and neurosurgeon Dr. Sunit Das. The paper discusses the key points from Dr. Das' talk. Specifically, it discusses about Dr. Das' perspective on the ethical and moral issues that was experienced from applying artificial intelligence (AI) in law and how such issues can also arise when applying (...) AI to medicine, and concludes with a brief discussion on how such issues can be prevented. (shrink)

Is there a moral difference between euthanasia for terminally ill adults and euthanasia for terminally ill children? Luc Bovens considers five arguments to this effect, and argues that each is unsuccessful. In this paper, I argue that Bovens' dismissal of the sensitivity argument is unconvincing.

In this paper, I defend brain death as a criterion for determining death against objections raised by Don Marquis, Michael Nair-Collins, Doyen Nguyen, and Laura Specker Sullivan. I argue that any definition of death for beings like us relies on some sortal concept by which we are individuated and identified and that the choice of that concept in a practical context is not determined by strictly biological considerations but involves metaphysical, moral, social, and cultural considerations. This view supports acceptance of (...) a more pluralistic legal definition of death as well as acceptance of brain death as death. (shrink)

This article draws upon the civic republican tradition to offer new conceptual resources for the normative assessment of mental capacity law. The republican conception of liberty as non-domination is used to identify ways in which such laws generate arbitrary power that can underpin relationships of servility and insecurity. It also shows how non-domination provides a basis for critiquing legal tests of decision-making that rely upon ‘diagnostic’ rather than ‘functional’ criteria. In response, two main civic republican strategies are recommended for securing (...) freedom in the context of the legal regulation of psychological disability: self-authorisation techniques and participatory shaping of power. The result is a series of proposals for the reform of decisional capacity law, including a transition towards purely functional assessment of decisional capacity, surer legal footing for advanced care planning, and greater control over the design and administration of decision-making capacity laws by those with psychological disabilities. (shrink)

It is widely accepted among medical ethicists that competence is a necessary condition for informed consent. In this view, if a patient is incompetent to make a particular treatment decision, the decision must be based on an advance directive or made by a substitute decision-maker on behalf of the patient. We call this the competence model. According to a recent report of the United Nations (UN) High Commissioner for Human Rights, article 12 of the UN Convention on the Rights of (...) Persons with Disabilities (CRPD) presents a wholesale rejection of the competence model. The High Commissioner here adopts the interpretation of article 12 proposed by the Committee on the Rights of Persons with Disabilities. On this interpretation, CRPD article 12 renders it impermissible to deny persons with mental disabilities the right to make treatment decisions on the basis of impaired decision-making capacity and demands the replacement of all regimes of substitute decision-making by supported decision-making. In this paper, we explicate six adverse consequences of CRPD article 12 for persons with mental disabilities and propose an alternative way forward. The proposed model combines the strengths of the competence model and supported decision-making. (shrink)

Individuals with disabilities face significant challenges, both physically and socially. To claim a disability, therefore, is not something one ought to do lightly. Pregnancy, however, presents a very difficult and interesting case. Pain, discomfort, and inconvenience are often daily aspects of pregnancy, and pregnancy itself can cause physical, as well as social, impediments that can substantially interfere with one's day-to-day work and life. In practice, based on our current laws concerning family leave, ailments brought on by pregnancy can be cited (...) as a temporary disability in certain circumstances. However, the kind of "pregnancyrelated disability" that is built into such leave policies and laws falls short of... (shrink)

This is a volume of twelve essays concerning the fundamental tension in personalised medicine between individual choice and the common good.

Too often, the right to healthcare has been considered an illusory right that is not even a legal right, but merely an aspirational norm that cannot be adjudicated before the court. In modern human rights law, considering individual and social rights as interdependent and indivisible, such an approach is untenable. Both legal doctrine and recent case law from domestic and international courts have elaborated and confirmed the specific obligations under the right to healthcare, countering the general complaint of “shrouded vagueness”. (...) Landmark cases have even provided a functional remedy to enforce individual healthcare claims successfully. This paper will examine the revised legal status and content of such a right to healthcare from a European perspective. (shrink)

Second edition of Property in the Body, containing about fifty percent new and updated material, including a chapter on surrogacy.

Beliefs about the moral status of children have changed significantly in recent decades in the Western world. At the same time, knowledge about likely consequences for children of individual, parental, and societal choices has grown, as has the array of choices that (prospective) parents may have at their disposal. The intersection between these beliefs, this new knowledge, and these new choices has created a minefield of expectations from parents and a seemingly ever-expanding responsibility towards their children. Some of these new (...) challenges have resulted from progress in genetics and neuroscience. It is these challenges that we focus on in this introduction and volume. (shrink)

Within bioethics, two prevailing approaches structure how we think about the role of medical surrogates and the decisions that they must make on behalf of incompetent patients. One approach views the surrogate primarily as the patient's agent, obediently enacting the patient's predetermined will. The second approach views the surrogate as the patient's custodian, judging for herself how to best safeguard the patient's interests. This paper argues that both of these approaches idealize away some of the ethically relevant features of advance (...) care planning that make patient preferences so inscrutable and surrogate decision-making so burdensome. It proposes a new approach to surrogate decision-making, the Fiduciary Agency Approach. On this novel approach, the surrogate has authority to not only act on the patient's behalf as the patient's agent but also to decide on the patient's behalf as the patient's fiduciary. One upshot of this new approach is that surrogates must sometimes go against the expressed dictates of the patients' advance directives not necessarily because doing so would be in the patient's best interest but rather because doing so would best represent the patients' will. (shrink)

Evidence-based policy has support in many areas of government and in public affairs more generally. In this paper we outline what evidence-based policy is, then we discuss its strengths and weaknesses. In particular, we argue that it faces a serious challenge to provide a plausible, over-arching account of evidence. We contrast evidence-based policy with evidence-based medicine, especially the role of evidence in assessing the effectiveness of medicines. The evidence required for policy decisions does not easily lend itself to randomized controlled (...) trials, nor, for that matter, being listed in a single all-purpose hierarchy. (shrink)

In this article, I address what kinds of claims are of the right kind to ground conscientious refusals. Specifically, I investigate what conceptions of moral responsibility and moral wrongness can be permissibly presumed by conscientious objectors. I argue that we must permit HCPs to come to their own subjective conclusions about what they take to be morally wrong and what they take themselves to be morally responsible for. However, these subjective assessments of wrongness and responsibility must be constrained in several (...) important ways: they cannot involve empirical falsehoods, objectionably discriminatory attitudes, or unreasonable normative beliefs. I argue that the sources of these constraints are the basic epistemic, relational, and normative competencies needed to function as a minimally decent health-care professional. Finally, I consider practical implications for my framework, and argue that it shows us that the objection raised by the plaintiffs in Zubik v. Burwell is of the wrong sort. (shrink)

The idea that prescribing physicians should be guided by the most reliable scientific evidence seems obvious, but the actual methodology of evidence-based medicine was only introduced in the early 1990s by an international group of clinicians and researchers led by Gordon Guyatt. Since then it has provided a new paradigm for the scientific foundation of medicine and has influenced other disciplines outside of medicine, for example, evidence-based psychotherapy, science and government. The novel concept of evidence-based medicine is based on hierarchies (...) of evidence from opinions of respected authorities, mechanistic reasoning, and reports of expert committees at the bottom to... (shrink)

Over the past seven decades, randomised controlled trials (RCTs) have revolutionised clinical research and achieved a gold standard status. However, extending their use to evaluate complex interventions is problematic. In this paper we will demonstrate that complex intervention RCTs violate the necessary premises that govern the RCTs logic and underpin their rigour. The lack of blinding, heterogeneity of participants, as well as poor treatment standardisation and difficulty of controlling for confounders, which characterise complex intervention RCTs, can potentially be profoundly detrimental (...) to their integrity. Proponents of this approach argue that matching “real world” circumstances, while maintaining the randomised design, enhances external validity. We counter this argument by pointing out that an inverted U relation exists between internal and external validity, and thus relaxing the experimental conditions beyond a certain threshold can potentially paradoxically render the RCT externally invalid, i.e. its results cannot be used anywhere. We shall illustrate the inappropriate use of RCTs to evaluate community treatment orders and propose an alternative epistemic model that is based on mechanistic reasoning and Cartwright's capacity concept. (shrink)

In many jurisdictions, an offender’s remorse is considered to be a relevant factor to take into account in mitigation at sentencing. The growing philosophical interest in the use of neurointerventions in criminal justice raises an important question about such remorse-based mitigation: to what extent should technologically facilitated remorse be honoured such that it is permitted the same penal significance as standard instances of remorse? To motivate this question, we begin by sketching a tripartite account of remorse that distinguishes cognitive, affective (...) and motivational elements of remorse. We then describe a number of neurointerventions that might plausibly be used to enhance abilities that are relevant to these different elements of remorse. Having described what we term the ‘moral value’ view of the justification of remorse-based mitigation, we then consider whether using neurointerventions to facilitate remorse would undermine its moral value, and thus make it inappropriate to honour such remorse in the criminal justice system. We respond to this question by claiming that the form of moral understanding that is incorporated into a genuinely remorseful response grounds remorse’s moral value. In view of this claim, we conclude by arguing that neurointerventions need not undermine remorse’s moral value on this approach, and that the remorse that such interventions might facilitate could also be authentic to the recipient of the neurointerventions that we discuss. (shrink)

An abundance of data unequivocally shows that exercise can be an effective tool in the fight against obesity and its associated co-morbidities. Indeed, physical activity can be more effective than widely-used pharmaceutical interventions. Whilst metformin reduces the incidence of diabetes by 31% (as compared with a placebo) in both men and women across different racial and ethnic groups, lifestyle intervention (including exercise) reduces the incidence by 58%. In this context, it is notable that a group of prominent medics and exercise (...) scientists recently sent a well-publicised letter to the General Medical Council and Medical Schools Council calling for the introduction of evidence-based lifestyle education into all medical curricula. The letter warns that there is a lack of understanding of the impact that exercise and nutrition can have on physical health amongst doctors. In the absence of an educational overhaul, the signatories warn that the government is likely to fail to reach its goal of preventing tens of thousands of premature deaths from heart disease and cancer by 2020. Whilst we agree with the need to address this apparent lack of understanding, we argue that the ethical justification of doing so is not limited to this broadly beneficence-based justification. There is also a justification grounded in the duty of non-maleficence, that is, the duty to avoid unreasonably harming patients. This duty requires that doctors refrain from (i) preventing patients from undergoing beneficial treatment without good reason, (ii) exposing patients to unreasonable risks and (iii) reducing the therapeutic effect of an effective medical intervention. This requires an understanding of the physical impact of exercise. (shrink)

We describe the legal practice of using civil court orders to mandate outpatient mental health treatment for adults with serious mental illness. After briefly placing the practice in historical context, we discuss the traditional clinical rationale and assumptions underlying outpatient commitment and its legal variants, as well as how the predominant and controversial preventive form of outpatient commitment emerged in the U.S. to address limitations of earlier versions of these laws, such as "conditional release." We then consider whether, and under (...) what conditions, outpatient commitment may be ethical, and we provide a conceptual framework for deciding such questions at the policy and individual-case levels. (shrink)

In this paper I first argue that when answering the question of whether or not governments may restrict emigration, Brock and Blake are staking out positions not astronomically far from one another. Despite the ostensibly large philosophical gap between the two, both think that certain governments may restrict emigration when such restriction is agreed to in a morally binding contract. Secondly, both authors think that there are specific “circumstances” or “conditions” under which a contract that restricts emigration can be morally (...) binding. This second part of the paper will pose some questions that explore these various circumstances or conditions. The ultimate aim of the paper is to help point the debate in the right direction so as to further develop an answer to the question of whether or not governments may restrict emigration. (shrink)

The potential for financial conflicts of interest to influence scientific research in problematic ways has recently become a significant topic of discussion across numerous fields. The chemical, petroleum, pharmaceutical, and tobacco industries have all been accused of suppressing evidence that their products are harmful, producing studies with questionable methodologies, generating questionable reinterpretations of studies that challenge their products, and working with public relations firms and front groups to mislead the public about relevant science. In an effort to address these influences, (...) government... (shrink)