This article, prompted by an extended essay published in the Journal of Medical Ethics by Charles Foster, and the current controversy surrounding the case of Vincent Lambert, analyses the legal and ethical arguments in relation to the withdrawal of life-sustaining treatment from patients with prolonged disorders of consciousness. The article analyses the legal framework through the prism of domestic law, case-law of the European Court of Human Rights and the Convention on the Rights of Persons with Disabilities, and examines (...) the challenge to the ethical consensus made by Foster. It concludes that the right approach remains a version of the approach that has prevailed for the last 25 years since the decision in Airedale NHS Trust v Bland[1993] AC 789, refined to reflect that that there is now, and rightly, a much more limited place for judgments made about the ‘burden’ of treatment or the quality of life enjoyed by the person made on the basis of assumptions about that person as a category as opposed to investigation of that person as an individual human being. (shrink)

Here we present the personal perspectives of two authors on the important and unfortunately frequent scenario of ambulance clinicians facing a deceased individual and family members who do not wish them to attempt cardiopulmonary resuscitation. We examine the professional guidance and the protection provided to clinicians, which is not matched by guidance to protect family members. We look at the legal framework in which these scenarios are taking place, and the ethical issues which are presented. We consider the interaction between (...) ethics, clinical practice and the law, and offer suggested changes to policy and guidance which we believe will protect ambulance clinicians, relatives and the patient. (shrink)

The modern legal and ethical movement against traditional welfare paternalism in medical decision-making extends to how decisions are made for patients lacking decisional capacity, prioritising surrogates’ judgment about what patients would have decided over even their best interests. In England and Wales, the Mental Capacity Act 2005 follows this trend of prioritising the patient’s prior wishes, values and beliefs but the dominant interpretation in life-sustaining treatment cases does so by in effect calling those values the ‘best interests’ of the patient (...) and focusing nearly exclusively on the ‘subjective’ viewpoint of the patient. In this article, we examine the recent Court of Protection judgment inBarnsley Hospitals NHS Foundation Trust v MSP[2020] EWCOP 26, which adhered closely to this approach, to suggest that it could have unexpected negative consequences. These include insufficient information gathering about and attention to patients’ objective medical interests, inadequacy of the evidentiary standard used for the substituted decision-making and, in some cases, even prioritising a surrogate’s current substituted judgment over the potential for an actual judgment by the patient. (shrink)

The COVID-19 pandemic put a large burden on many healthcare systems, causing fears about resource scarcity and triage. Several COVID-19 guidelines included age as an explicit factor and practices of both triage and ‘anticipatory triage’ likely limited access to hospital care for elderly patients, especially those in care homes. To ensure the legitimacy of triage guidelines, which affect the public, it is important to engage the public’s moral intuitions. Our study aimed to explore general public views in the UK on (...) the role of age, and related factors like frailty and quality of life, in triage during the COVID-19 pandemic. We held online deliberative workshops with members of the general public. Participants were guided through a deliberative process to maximise eliciting informed and considered preferences. Participants generally accepted the need for triage but strongly rejected ‘fair innings’ and ‘life projects’ principles as justifications for age-based allocation. They were also wary of the ‘maximise life-years’ principle, preferring to maximise the number of lives rather than life years saved. Although they did not arrive at a unified recommendation of one principle, a concern for three core principles and values eventually emerged: equality, efficiency and vulnerability. While these remain difficult to fully respect at once, they captured a considered, multifaceted consensus: utilitarian considerations of efficiency should be tempered with a concern for equality and vulnerability. This ‘triad’ of ethical principles may be a useful structure to guide ethical deliberation as societies negotiate the conflicting ethical demands of triage. (shrink)

The overwhelming weight of legal authority in the USA and Canada holds that consent is not required for brain death testing. The situation in England and Wales is similar but different. While clinicians in England and Wales may have a prima facie duty to obtain consent, lack of consent has not barred testing. In three recent cases where consent for brain death testing was formally presented to the court, lack of consent was not determinative, and in one case the court (...) questioned whether the clinicians were even required to seek consent from the parents of a child at all. (shrink)

This paper is an exploration of the state of ‘clinical unease’ experienced by clinicians in contexts where professional judgement—grounded in clinical knowledge, critical reflection and a sound grasp of the law—indicates that there is more than one ethically defensible way to proceed. The question posed is whether the courts can be viewed as an appropriate vehicle to settle clinical unease by providing a ruling that clarifies the legal and ethical issues arising in the case, even in situations where there is (...) no dispute between the patient (or her proxies) and the healthcare team.The concept of ‘clinical unease’ is framed with reference to the broader experience of clinical decision-making, and distinguished from other widely discussed phenomena in the healthcare literature like moral distress and conscientious objection. A number of reported cases are briefly examined where the courts were invited to rule in circumstances of apparent ‘unease’. The respective responsibilities of clinicians and courts are discussed: in particular, their capability and readiness to respond to matters of ethical concern.Four imagined clinical scenarios are outlined where a clinical team might welcome a court adjudication, under current rules. Consideration is given to the likelihood of such cases being heard, and to whether there may be better remedies than the courts. There are final reflections on what clinicians may actually wish for in seeking court involvement, and on whether a willingness to engage with the experience of clinical unease may lead to greater sensitivity towards the value perspectives of others. (shrink)

Taken together, Sections 145 and 63 of the Mental Health Act 1983 provide for treatment without consent of physical illness ancillary to the mental disorder with which a patient presents. On a daily basis, clinicians make both the decision that the Act’s authority can be applied to their patient’s case, and that it should be applied. But in the unusual circumstances where there is uncertainty as to the applicability of the MHA to the ancillary treatment of physical illness, the assistance (...) of a court may be sought. In so doing, the law may justify compulsion but never prescribes it; the clinician is presented with authority that he or she could use but is left to decide whether it should be employed. This paper explores how the clinical question is set before the court, and whether the distinction between symptom, manifestation and consequence is sufficiently understood. This has important consequences in the context of self-neglect and its close cousin self-harm: the question whether the relevant ailment was attributable to or exacerbated by neglect or self- inflicted harm will determine whether compulsion under the MHA is applicable; and furthermore, whether or not compulsion is clinically acceptable. No data are available. Not applicable. (shrink)

All contemporary frameworks of mental capacity stipulate that we must begin from the presumption that an adult has capacity. This presumption is crucial, as it manifests respect for autonomy and guards against prejudice and paternalism on the part of the evaluator.Given its ubiquity, we might presume that we all understand the presumption’s meaning and application in the same way. Evidence demonstrates that this is not the case and that this has led to harm in vulnerable persons. There is thus strong (...) reason to question our presumptions about the presumption of capacity.We distinguish between two main ways of understanding and applying the presumption of capacity, and advocate for the one that we argue mitigates risk of harm. Our proposed interpretation offers many advantages in that it is consonant with actual practice of capacity evaluations, precludes confused and abusive avoidance of needed evaluations, and preserves the respect for autonomy motivating the presumption in the first place. (shrink)

In February 2022, the Court of Protection was faced with the question of whether a kidney transplant was in the best interests of William Verden. The case highlighted the legal, ethical and clinical complexities of treating potential kidney transplant patients with impaired decision-making. Above all, it exposed the potential risk of discrimination on the basis of disability when treatment decisions in relation to potential kidney recipients with impaired capacity are being made. In this paper, we draw on the Verden case (...) to (1) examine the role of the Court of Protection in cases relating to patients with impaired decision-making capacity who require a transplant, (2) to highlight the lack of empirical data on patients who have faced inequitable access to transplant and (3) highlight the shortcomings of the existing legal and regulatory framework in England and Wales guiding clinical decision making for patients in William’s position. We consequently argue that there is a clear need for action to ensure equitable access to transplant for those in William’s position. Furthermore, we suggest that there is a responsibility incumbent on policy makers and clinicians alike to develop a meaningful, and meaningfully operational, framework centred on preventing discrimination against potential organ recipients based on their decision-making capacity. (shrink)

Most jurisdictions require that a mental capacity assessment be conducted using a functional model whose definition includes several abilities. In England and Wales and in increasing number of countries, the law requires a person be able to understand, to retain, to use or weigh relevant information and to communicate one’s decision. But interpreting and applying broad and vague criteria, such as the ability ‘to use or weigh’ to a diverse range of presentations is challenging. By examining actual court judgements of (...) capacity, we previously developed a descriptive typology of justifications used in the application of the Mental Capacity Act criteria. We here critically optimise this typology by showing how clear definitions—and thus boundaries—between the criteria can be achieved if the ‘understanding’ criterion is used narrowly and the multiple rationales that fall under the ability to ‘use or weigh’ are specifically enumerated in practice. Such a typology-aided practice, in theory, could make functional capacity assessments more transparent, accountable, reliable and valid. It may also help to create targeted supports for decision making by the vulnerable. We also discuss how the typology could evolve legally and scientifically, and how it lays the groundwork for clinical research on the abilities enumerated by the MCA. No data are available. This paper does not report any original data. (shrink)

American philosophy has been dominated by the theme of "Nature."1 From Edwards to Emerson to Dewey to Dennett, American thought has variously invoked Nature. But to articulate a philosophy of Nature is not thereby to espouse a form of "naturalism." In fact, philosophies undertaken in the name of "naturalism" seem to have a different temperament than those that begin with the thought of Nature as such. As a theme, "Nature" invites an expansive mood for reflection, while "naturalism" sounds constrictive and (...) combative. "Nature" disposes the mind to musement, "pondering," theoria, Denken—to becoming Emerson's "transparent eyeball." "Naturalism" has something of a doctrinal, even dogmatic, flavor, since every "-ism".. (shrink)

Summary Background Self-binding directives instruct clinicians to overrule treatment refusal during future severe episodes of illness. These directives are promoted as having potential to increase autonomy for individuals with severe episodic mental illness. Although lived experience is central to their creation, service users’ views on self-binding directives have not been investigated substantially. This study aimed to explore whether reasons for endorsement, ambivalence, or rejection given by service users with bipolar disorder can address concerns regarding self-binding directives, decision-making capacity, and human (...) rights. Methods This study used qualitative data from an internet-based survey distributed to the mailing list of the UK charity Bipolar UK, which contained multiple closed and open questions on advance decision-making in bipolar disorder. Quantitative analysis of a closed question about self-binding directives had already demonstrated endorsement amongst a very high proportion of participants with bipolar disorder who completed the survey. We conducted thematic analysis of responses from those participants who answered a subsequent open question about reasons for their view. Research was co-produced within a multi-disciplinary team, with clinical, legal, and ethical expertise, and lived experience of bipolar disorder. Ideas and methodologies associated with all these areas of expertise were used in the analysis of these reasons and to gain insight into the thoughts of individuals with bipolar disorder about self-binding directives and associated issues. Findings Between Oct 23 and Dec 5, 2017, 932 individuals with a self-reported clinical diagnosis of bipolar disorder completed the internet survey, with 565 (154 men; 400 women; 11 transgender or other) providing free text answers to the open question. A large majority of respondents endorsed self-binding directives, nearly all describing a determinate shift to types of distorted thinking and decision-making when unwell as their key justification. Responses indicating ambivalence were dominated by logistical concerns about the drafting and implementation of self-binding directives, while those who rejected self-binding directives also cited logistical concerns, validity of their thinking when unwell, and potential contravention of human rights. Interpretation This study is, to our knowledge, the first large study of reasons why mental health service users might endorse or reject the use of self-binding directives. The findings provide empirical support for introducing self-binding directives into mental health advance decision-making practice and policy and may help to address enduring ethical concerns surrounding possible implementation of the directive while a person retains decision-making capacity. The opinions expressed here in responses given by multiple service users with bipolar disorder challenge a prominent view within international disability rights debates that involuntary treatment and recognition of impaired mental capacity constitute inherent human rights violations. Funding The Wellcome Trust . (shrink)

Studies in philosophy: I. Tufts, J.H. On moral evolution. II. Willcos, W.F. The expansion of Europe in its influence upon population. III. Woods, R.A. Democracy a new unfolding of human power. IV. Sharp, F.C. An analysis of the moral judgment. V. Woodbridge, F.J.E. The problem of consciousness. VI. Norton, E.L. The intellectual element in music. VII. Raub, W.L. Pragmatism and Kantianism. VIII. Lyman, E.W. The influence of pragmatism upon the status of theology.--Studies in psychology: IX. Delabarre, E.B. Influence of surrounding (...) objects on the apparent direction of a line. X. Swift, E.J. Beginning a language; a contribution to the psychology of learning. XI. Pierce, A.H. An appeal from the prevailing doctrine of a detached subconsciousness. XII. Woodworth, R.S. The cause of a voluntary movement. XIII. Burnett, C.T. An experimental test of the classical theory of volition. (shrink)

Charles Trinkaus can be counted among the eminent intellectual and cultural historians of the Renaissance. This new collection of his articles brings together pieces published since 1982. The studies are concerned with Italian Renaissance humanists and philosophers who tended to affirm human capacities to shape earthly existence, despite the traditional limitations proposed by some scholastics and astrologers. Professor Trinkaus holds that, without abandoning their Christian faith, or their acceptance of physical influences from the cosmos, these writers, in their stress (...) on human capacities, were responding to the vigorous activism of their contemporaries in all aspects of their existence. The final four papers also provide a series of reflections on the modern historiography of the Renaissance. (shrink)

Spinoza and modern thought, by Lawson P. Chambers.-- Existence and value, by George R. Dodson.-- The realm of necessity, by Charles E. Cory.

The volume contains studies by eleven distinguished scholars, concerning changes in ethical and religious consciousness during this important era of Western ...