In three parts, this volume in the AP-LS series explores the phenomena of captivity and risk management, guided and informed by the theory, method, and policy of psychological jurisprudence. The authors present a controversial thesis that demonstrates how the forces of captivity and risk management are sustained by several interdependent "conditions of control." These conditions impose barriers to justice and set limits on citizenship for one and all. Situated at the nexus of political/social theory, mental health law and jurisprudential ethics, (...) the book examines and critiques constructs such as offenders and victims; self and society; therapeutic and restorative; health; harm; and community. So, too, are three "total confinement" case law data sets on which this analysis is based. The volume stands alone in its efforts to systematically "diagnose" the moral reasoning lodged within prevailing judicial opinions that sustain captivity and risk management practices impacting: (1) the rights of juveniles found competent to stand criminal trial, the mentally ill placed in long-term disciplinary isolation, and sex offenders subjected to civil detention and community re-entry monitoring; (2) the often unmet needs of victims; and (3) the demands of an ordered society. Carefully balancing sophisticated insights with concrete and cutting-edge applications, the book concludes with a series of provocative, yet practical, recommendations for future research and meaningful reform within institutional practice, programming, and policy. (shrink)

Mental health professionals rightfully experience significant anxiety regarding their duty to protect when working with potentially dangerous individuals. This work dispels myths and provides readers with a resource addressing the situations where a duty to protect may apply.

Bringing together the latest work from leading scholars in this emerging and vibrant subfield of law, this book examines the philosophical issues that inform the intersection between law and neuroscience.

In lieu of an abstract, here is a brief excerpt of the content:Philosophy, Psychiatry, & Psychology 10.2 (2003) 193-194 [Access article in PDF] A Comment on Christopher Ciocchetti:"The Responsibility of the Psychopathic Offender" Daniel W. Shuman Questions of responsibility for serious harm are complex and potentially divisive. The way in which we frame these questions and the criteria by which we assess answers to them are colored, in part, by the lens though which we view them. I am a law (...) professor whose writings includes issues relating to criminal responsibility of person with mentally disabilities and I come to this commentary from that perspective. For me questions of moral responsibility raise psychological and philosophical, as well as legal, questions.Ciocchetti's (2003) paper addressees the criminal responsibility of the psychopathic offender. Not sure quite what the author meant by this label, I began to try to understand the concept of psychopathic offender by picking up my DSM-IV-TR and found no reference to such a diagnostic category. Absent a handy reference in the DSM, I looked in the paper for some other definition or recognition of the category of psychopathic offender and found no satisfactory grounding in any body of sound research. Left with the author's unsupported assertions that such a category of persons exists and that they behave in ways the author asks me to accept without support, my lawyer instincts cautioned me to proceed carefully. The psychopathic offender the author describes might well exist, but I am not persuaded of that, nor would be my legal colleagues, absent proof.Next, to the author's thesis that "[t]he offender must have the capacities necessary to understand relationships to justify holding that offender responsible" (p. 176) and that because psychopaths lack this capacity they should not be held criminally responsible. Is the author proposing a new test for criminal responsibility? Certainly no test for criminal nonresponsibility based on mental disability (i.e., insanity defense) in Anglo-American jurisprudence, or any other with which I am familiar, makes status (i.e., a diagnostic category) exculpatory for criminal responsibility. Rather, every test addresses the impact of a mental illness or disorder on the cognitive or volitional capacity of the offender at the time of the offense. The author offers no reason to reject the approach taken for the last several hundred years [End Page 193] by Anglo-American jurisprudence. Moreover, to the extent that status or diagnostic category is relevant in the insanity defense in Anglo-American jurisprudence, character or personality disorders (the genus to which I take it that psychopathy belongs) are often specifically excluded from consideration. For example, the Texas Penal Code (Tex. Penal Code Ann. § 8.01 (Vernon 1994)) states that:It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of a severe mental disease or defect, did not know that his conduct was wrong. The term "mental disease or defect" does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.The federal Insanity Defense Reform Act raises the same issue: The government relies on the legislative history of 18 U.S.C. § 17, which states: "The concept of severity was added to emphasize that non-psychotic behavior disorders or neuroses such as an 'inadequate personality,' 'immature personality,' or a pattern of 'antisocial tendencies' do not constitute the defense.".... The government argues that because Dr. Lorenz would have testified that Salava was not psychotic but suffered from antisocial personality disorder, his testimony was not relevant to either prong of the insanity defense under the statute.... As a general matter, the government's point is well-taken. It seems clear that Congress intended by its inclusion of the modifier "severe" to place certain "disorders" outside the purview of the insanity defense altogether. United States v. Salava, 978 F.2d 320, 323 (7th Cir. 1992) Nowhere in the paper does Chiochetti acknowledge or address these societal judgments of moral responsibility that have already rejected a far more modest version of his proposal in categorically ruling out character or personality disorders from inclusion as... (shrink)

This book explores patient safety themes in developed, developing and transitioning countries. A foundation premise is the concept of 'reverse innovation' as mutual learning from the chapters challenges traditional assumptions about the construction and location of knowledge. This edited collection can be seen to facilitate global learning. This book will, hopefully, form a bridge for those countries seeking to enhance their patient safety policies. Contributors to this book challenge many supposed generalisations about human societies, including consideration of how medical care (...) is mediated within those societies and how patient safety is assured or compromised. By introducing major theories from the developing world in the book, readers are encouraged to reflect on their impact on the patient safety and the health quality debate. The development of practical patient safety policies for wider use is also encouraged. The volume presents a ground breaking perspective by exploring fundamental issues relating to patient safety through different academic disciplines. It develops the possibility of a new patient safety and health quality synthesis and discourse relevant to all concerned with patient safety and health quality in a global context. (shrink)

Stay up-to-date on the ethical and legal issues that affect your clinical and professional decisions! Ethical and Legal Issues for Mental Health Professionals: A Comprehensive Handbook of Principles and Standards details the ethical and legal issues that involve mental health professionals. Respected authorities with diverse backgrounds, expertise, and professional experience discuss contemporary theories emphasizing professional ethics, the ramifications of professional actions and decisions, and ethical standards on teaching, training, research, and publication. This informative handbook provides invaluable up-to-date (...) information and guidelines vital for every mental health professional. This book is a thorough examination of ethical behavior which can be used as a reference source for the professional or a textbook for graduate students. The handbook itself is divided into five sections. The first section is a detailed introduction of ethics, law, and licensing. The second section presents general ethical principles like competence, integrity, and respect for individual rights and dignity. The third section examines confidentiality, privilege, consent, and protection. The fourth section focuses on general ethical standards in practice, including sexual contact, multiple relationships, and bartering. The fifth section presents the ethical principles and standards in teaching, training, and research. Appendices include the Ethical Principles of Psychologists and Code of Conduct (American Psychological Association, 2002) and the Code of Ethics of the National Association of Social Workers (National Association of Social Workers, 1999). Ethical and Legal Issues for Mental Health Professionals: A Comprehensive Handbook of Principles and Standards discusses: the history of basic approaches and issues in ethical philosophy five fundamental areas in the process of developing competence the necessary ingredients for the mental health professional's practice of integrity aspirational versus enforceable standards of ethics concern for the welfare of others as a core ethical principle the notion of social responsibility in the ethics codes of psychologists and social workers ethical principles, statutes, and case law protecting privacy and confidentiality issues involving the therapist-patient privilege the "duty to protect" doctrine and relevant legal issues the dynamics of multiple relationships and boundary violations sexualized dual relationships between psychologists and patients possible conflict of interest in bartering for services the requirements and implementation of maintaining patient records to avoid ethical and legal problems possible ethical dilemmas involving referrals and fees much, much more This Handbook is an essential resource for all mental health professionals, including psychologists, psychiatrists, social workers, counselors, therapists, and graduate students in mental health and the related fields. Ethical and Legal Issues for Mental Health Professionals: A Comprehensive Handbook of Principles and Standards is the first of three volumes under this title. The following volumes will focus on forensic settings and special populations/special treatment modalities. (shrink)

This unique text is organized around the most current ethical and legal standards as defined by the mental health professionals of psychology, social work, ...

Described as one of the two fathers of medical law, Professor Peter Skegg has been a leading figure in the study of law and medicine. Over a 46 year academic career at the University of Auckland, University of Oxford, and the University of Otago, Professor Skegg has helped develop the field of medical law into a burgeoning academic discipline and has provided intellectual guardianship for the practice of law and medicine. This collection brings together contemporaries, colleagues, and former students of (...) Professor Skegg to celebrate his enduring contribution to the study of medical law. This edited collection contains twelve essays written by a range of internationally recognised medical lawyers. The topics cover the regulation of medical practitioners, consent, rights in bodily material, euthanasia, compensation and ethical approval for medical research, treatment orders for mental health conditions, and surrogacy laws. Whilst some of the essays return to territory that has been initially surveyed by Peter s research and analysis, others touch upon some wider medical law topics, illustrating Peter s lasting contribution to medical law as well as mapping out some of the new frontiers for the discipline of medical law. Academics, students and practitioners, from a range of jurisdictions, who are interested in how the law governs the provision of healthcare will benefit reading the various essays contained here. In addition, anyone who has had the good fortune of working with, or learning from, Professor Skegg will also enjoy the opportunity to return to the field of study that he founded. (shrink)

Prior to the second world war, most persons confined in insane asylums were regarded as legally incompetent and had guardians appointed for them. Today, most persons confined in mental hospitals are, in law, competent; nevertheless, in fact, they are treated as if they were incompetent. Should the goal of mental health policy be providing better psychiatric services to more and more people, or the reduction and ultimate elimination of the number of persons in the population treated as mentally ill?

In the past few years an increasing number of colleges and universities have added courses in biomedical ethics to their curricula. To some extent, these additions serve to satisfy student demands for "relevance. " But it is also true that such changes reflect a deepening desire on the part of the academic community to deal effectively with a host of problems which must be solved if we are to have a health-care delivery system which is efficient, humane, and just. To (...) a large degree, these problems are the unique result of both rapidly changing moral values and dramatic advances in biomedical technology. The past decade has witnessed sudden and conspicuous controversy over the morality and legality of new practices relating to abortion, therapy for the mentally ill, experimentation using human subjects, forms of genetic interven tion, suicide, and euthanasia. Malpractice suits abound and astronomical fees for malpractice insurance threaten the very possibility of medical and health-care practice. Without the backing of a clear moral consensus, the law is frequently forced into resolving these conflicts only to see the moral issues involved still hotly debated and the validity of existing law further questioned. In the case of abortion, for example, the laws have changed radically, and the widely pub licized recent conviction of Dr. Edelin in Boston has done little to foster a moral consensus or even render the exact status of the law beyond reasonable question. (shrink)

In this paper we aim to offer a balanced argument to motivate (re)thinking about the mental illness clause within the insanity defence. This is the clause that states that mental illness should have a relevant causal or explanatory role for the presence of the incapacities or limited capacities that are covered by this defence. We offer three main considerations showing the important legal and epistemological roles that the mental illness clause plays in the evaluation of legal responsibility. Although (...) we acknowledge that these advantages could be preserved without having this clause explicitly stated in the law, we resist proposals that deny the importance of mental illness in exculpation. We argue, thus, that any attempt at removing the mental illness clause from legal formulations of the insanity defence should offer alternative ways of keeping in place these advantages. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Key Concepts: Criminal ResponsibilityCarl Elliott (bio)AbstractMentally disordered persons occasionally do things for which we would ordinarily blame or even punish a non-disordered person. We often do not blame mentally disordered persons for these actions, however, because we regard mental disorders, at least in some circumstances, as an excuse from moral responsibility. For moral philosophy and the law, the challenge is to understand the specific circumstances under which a (...) mental disorder should excuse an offender from responsibility for his or her actions. Because different types of psychopathology influence a person’s intentions and character in very different ways, judgments of responsibility crucially depend upon the specific nature of a mental disorder. They also depend on adequate understandings of concepts such as moral understanding, especially in the case of psychopathy, as well as an understanding of the reasons why mental disorders may excuse a person from responsibility.Keywordsintention, M’Naghten Rules, irresistible impulse, personality disorders, psychopathyThe mentally ill often do things for which they are not responsible. This has long been recognized, by both morality and the law. But just which mentally ill persons should be excused, and under what circumstances, is an altogether more complicated affair.In the Nicomachean Ethics, Aristotle distinguishes two types of involuntary actions, for which (by implication) a person might be excused from responsibility: those done in ignorance, and those that were compelled. Both excuses are variations on the theme of non-intention. If a person did not intend to act as he did—either because he did not know what he was doing, or because he could not help acting as he did—then he is not responsible for the action. Intention is also a key point for the law, which traditionally has said that for a crime to have been committed, it must be accompanied by evil intent, or mens rea (literally, “guilty mind.”)The problem comes in saying how these distinctions play out for the mentally ill offender. The most widely used standards for determining criminal (legal) responsibility are based on the M’Naghten Rules, which excuse a person from responsibility for an act if, as a result of a mental disorder, he did not know the nature and quality of the act, or did not know that the act was wrong. This standard works nicely for the paradigmatic cases of mentally ill offenders; it would excuse, for example, the person with paranoid schizophrenia who strikes out violently at a person he falsely believes is threatening his life. However, it is unclear on several other points, the most famous of which relates to Aristotle’s excusing condition of compulsion. How should we regard those people, for example, whose psychosis impairs their ability to control their behavior, or whose mental disorders involve the control of their unusual desires, such as kleptomania, pyromania, pedophilia and voyeurism? Many of the [End Page 305] latter such persons are aware of the nature and quality of what they desire to do, and they are aware that it is wrong, but they find great difficulty in resisting their desires.One well-known effort to remedy this deficiency was the “irresistible impulse” test, which excused those persons who as a result of their condition had acted on desires that were irresistible. Yet the difference between an irresistible desire and a desire not resisted has proven notoriously difficult to distinguish, in practice as well as in theory.Another chronic source of philosophical controversy is the question of responsibility for one’s character. In psychiatry, this debate surfaces most often with patients who have personality disorders. Ordinarily, since persons cannot control whether they incur a mental illness, they can be excused from responsibility for some actions they have taken while they were mentally ill. However, personality disorders are also (in some sense) beyond a person’s control, being the product of genetic inheritance and upbringing. This raises old issues of psychological determinism: if personality disorders are beyond a person’s control, is it just to hold that person responsible for the actions that result from them?On the other hand, even if personality disorders are within the proper domain of psychiatry, they are obviously quite different from... (shrink)

Resource added for the Nursing-Associate Degree 105431, Practical Nursing 315431, and Nursing Assistant 305431 programs.

A Era Tecnológica em que vivemos agrava os riscos de despersonalização do ser humano, sobretudo no campo da Medicina, subvertendo a ordem de a ciência servir à pessoa. Cuidados paliativos e direitos do paciente terminal apresenta análise pioneira da terminalidade da vida à luz do Direito Civil, com ênfase nos direitos da personalidade, da Bioética e da Filosofia de Emmanuel Lévinas. São alguns tópicos de destaque- - pessoa e personalidade; - direitos da personalidade; - futilidade terapêutica; - cuidados em saúde (...) para pacientes terminais; - qualidade de vida na enfermidade; - decisões em fim de vida; - ética à beira do leito do paciente; - direitos sobre o próprio estado de saúde; - diretivas antecipadas de vontade. Obra de sensibilidade ímpar, Cuidados paliativos e direitos do paciente terminal destina-se a estudantes e profissionais do Direito e da área da saúde, e a todos aqueles que se interessam por discussão tão delicada e necessária nos dias atuais. Para acessar as atualizações dos textos legais após a publicação da obra e outros documentos sobre o tema, acesse- manoleeducacao.com.br/cuidados-paliativos. (shrink)

本書は、自己決定権が特に法的関連の中で問題となっている尊厳死、安楽死、自殺、臓器移植及び死の概念を中心に、我が国における状況及び諸外国での態様に関し、比較法的考察を交えながら、著者なりの見解を明らかに している。.

This chapter argues that a successful plea of legal insanity ought to rest upon proof that a criminal act is causally related to symptoms of a mental disorder. Diagnosis of a mental disorder can signal to the court that the defendant had very little control over relevant moral ignorance or incompetence. Must we draw the same conclusion for defendants who lack moral knowledge due to miseducation or other extreme environmental conditions, unrelated to a mental disorder? Adults who were brainwashed (...) as children, for example, might seem “insane” due to their lack of moral knowledge. However, since legal culpability rests on the capacity to understand the criminal law’s moral demands, to reflect on these demands across time, and to control one’s behavior in light of them, simple ignorance of morality's demands does not excuse. (shrink)

Systematically improving patient safety is of the utmost importance, but it is also an extremely complex and challenging task. This illuminating study evaluates the role of professionalism, regulation and law in seeking to improve safety, arguing that the 'medical dominance' model is ill-suited to this aim, which instead requires a patient-centred vision of professionalism. It brings together literatures on professions, regulation and trust, while examining the different legal mechanisms for responding to patient safety events. Oliver Quick includes an examination (...) in areas of law which have received little attention in this context, such as health and safety law, and coronial law, and contends in particular that the active involvement of patients in their own treatment is fundamental to ensuring their safety. (shrink)

This article argues in favor of modifying the medical model of severe psychiatric disturbances that underlies calling them "mental illness." The key reason for this proposal is that numerous specialists other than physicians as well as non-specialists contribute to the process of assisting a person recover from what the author suggests might better be called "extraordinary functional disability." There is little uniformity in existing definitions under state laws, but all involve three types of intervention: civil commitment; civil determination of (...) class='Hi'>legal competency; and standing to be subject to criminal law. Physicians typically make relevant determinations in each of these areas; but non-physicians are the principal care-givers once a determination has been made. (shrink)

This paper analyses ethical issues in forensic psychiatric research on mentally disordered offenders, especially those detained in the psychiatric treatment system. The idea of a 'dual role' dilemma afflicting forensic psychiatry is more complicated than acknowledged. Our suggestion acknowledges the good of criminal law and crime prevention as a part that should be balanced against familiar research ethical considerations. Research aiming at improvements of criminal justice and treatment is a societal priority, and the total benefit of studies has (...) to be balanced against the risks for research subjects inferred by almost all systematic studies. Direct substantial risks must be balanced by health benefits, and normal informed consent requirements apply. When direct risks are slight, as in register-based epidemiology, lack of consent may be counter-balanced by special measures to protect integrity and the general benefit of better understanding of susceptibility, treatment and prevention. Special requirements on consent procedures in the forensic psychiatric context are suggested, and the issue of the relation between decision competence and legal accountability is found to be in need of further study. The major ethical hazard in forensic psychiatric research connects to the role of researchers as assessors and consultants in a society entertaining strong prejudices against mentally disordered offenders. (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 The Rules of Insanity, Carl Elliott draws on philosophy and psychiatry to develop a conceptual framework for judging the moral responsibility of mentally ill offenders. Arguing that there is little useful that can be said about the responsibility of mentally ill offenders in general, Elliott looks at specific mental illnesses in detail; among them schizophrenia, manic-depressive disorders, psychosexual disorders such as exhibitionism and voyeurism, personality disorders, and impulse control disorders such as kleptomania and pyromania. He (...) takes a particularly hard look at the psychopath or sociopath, who many have argued is incapable of understanding morality. Making extensive use of psychiatric case histories, Elliott explores the various ways in which mental illness can affect a person's intentions and thus excuse him or her from moral responsibility. (shrink)

Mental illness may be manifested in the impairment of understanding or of volitional control. Impairment of understanding may be manifested in delusions. Impairment of volitional control is shown when a person is unable to act in accordance with good reasons that he himself accepts. In order for an impairment of understanding or of self-control to exculpate, the offence must be causally connected with the impairment in question. The rationale of exculpation in general, which applies also to the case of mental (...) illness, is that the offence does not indicate a morally bad attitude in the offender. A consequence of this rationale is that Kenny is wrong to hold that no injustice would result from the elimination of the legal defence of diminished responsibility. (shrink)

The concept of mental illness is explored through an examination of four key foundational issues. These are the notion of the “mental” as it relates to psychopathology; the concept of illness; the relationship of mental illness to concepts of function and malfunction; and sociocultural dimensions of psychopathology. The problematic status of the concept of mental illness is investigated through locating it within the various discourses of biomedicine, psychology, law, and sociology and by explicating and relating the philosophical underpinnings of those (...) discourses. (shrink)

Prisoners signify: a political discourse analysis of mental illness in a prison control unitIncreasingly, US prisoners diagnosed with mental illness are housed in control units, the most restrictive form of confinement in the US prison system. This situation has led to intense debate over the legal, ethical and clinical status of mental illness. This is a semiotic struggle with profound effects, yet most related work treats mental illness as a neutral, individual variable. Few analyses locate mental illness within a (...) larger sociopolitical context. Fewer still focus on discursive practice. None critically analyze the accounts of control unit prisoners, who talk about extreme marginality and risk for victimization. This paper has two aims: (i) to develop a systematic method of analysis that accounts for signification as discourse‐in‐action; and (ii) to show how prisoners’ signification of mental illness articulates agency through and against marginalizing discourse. Political discourse analysis demonstrates how control unit prisoners with psychiatric diagnoses signify mental illness, and articulate safer identifications in the process. (shrink)

ABSTRACTThis paper analyses ethical issues in forensic psychiatric research on mentally disordered offenders, especially those detained in the psychiatric treatment system. The idea of a ‘dual role’ dilemma afflicting forensic psychiatry is more complicated than acknowledged. Our suggestion acknowledges the good of criminal law and crime prevention as a part that should be balanced against familiar research ethical considerations. Research aiming at improvements of criminal justice and treatment is a societal priority, and the total benefit of studies has (...) to be balanced against the risks for research subjects inferred by almost all systematic studies. Direct substantial risks must be balanced by health benefits, and normal informed consent requirements apply. When direct risks are slight, as in register‐based epidemiology, lack of consent may be counter‐balanced by special measures to protect integrity and the general benefit of better understanding of susceptibility, treatment and prevention. Special requirements on consent procedures in the forensic psychiatric context are suggested, and the issue of the relation between decision competence and legal accountability is found to be in need of further study. The major ethical hazard in forensic psychiatric research connects to the role of researchers as assessors and consultants in a society entertaining strong prejudices against mentally disordered offenders. (shrink)

Studies link involuntary outpatient commitment with improved patient outcomes, fueling debate on its ethical justification. This study compares inpatient utilization for committed outpatients in the 1990s with those who were not under outpatient civil commitment orders. Findings reveal committed outpatients had higher utilization of inpatient services and restraint episodes prior to their commitment compared with a control group. Committed outpatients also were more likely to have been on discharge status at the time of admission, have been admitted involuntarily under emergency (...) legal procedures, and have had a greater number of admissions and hospital days prior to their commitment. Following commitment, patients had fewer hospitalizations, shorter lengths of stay, fewer seclusion episodes and hours, and fewer restraint episodes and hours. Findings are discussed within the context of parens patriae and therapeutic jurisprudence, and support medical and public policy justifications for ethical uses of outpatient civil commitment laws for seriously mentally ill patients. (shrink)

The concept of rights is now so dominant in the language of politics that it is becoming difficult to identify its use with any particular approach to the solution of social problems or to gain a clear picture of its significance, its advantages and its disadvantages as a way of conceptualizing and resolving contentious political issues. None the less there is a perceptible shift towards an emphasis on rights in contemporary politics which many welcome and encourage and others question and (...) even reject, a shift which is matched in jurisprudence by the renewed stress which many theorists place on rights as a basic legal concept despite recurrent problems associated with the concept as a tool for legal analysis and moral justification. Conflicting theories of legal rights are canvassed and this in turn feeds into the debate concerning the reality or significance of non-legal rights, for the process of law reform is often presented as a matter of giving legal embodiment to the rights which various interested categories of people are asserted to possess already. (shrink)

The concept of rights is now so dominant in the language of politics that it is becoming difficult to identify its use with any particular approach to the solution of social problems or to gain a clear picture of its significance, its advantages and its disadvantages as a way of conceptualizing and resolving contentious political issues. None the less there is a perceptible shift towards an emphasis on rights in contemporary politics which many welcome and encourage and others question and (...) even reject, a shift which is matched in jurisprudence by the renewed stress which many theorists place on rights as a basic legal concept despite recurrent problems associated with the concept as a tool for legal analysis and moral justification. Conflicting theories of legal rights are canvassed and this in turn feeds into the debate concerning the reality or significance of non-legal rights, for the process of law reform is often presented as a matter of giving legal embodiment to the rights which various interested categories of people are asserted to possess already. (shrink)

Studies link involuntary outpatient commitment with improved patient outcomes, fueling debate on its ethical justification. This study compares inpatient utilization for committed outpatients in the 1990s with those who were not under outpatient civil commitment orders. Findings reveal committed outpatients had higher utilization of inpatient services and restraint episodes prior to their commitment compared with a control group. Committed outpatients also were more likely to have been on discharge status at the time of admission, have been admitted involuntarily under emergency (...) legal procedures, and have had a greater number of admissions and hospital days prior to their commitment. Following commitment, patients had fewer hospitalizations, shorter lengths of stay, fewer seclusion episodes and hours, and fewer restraint episodes and hours. Findings are discussed within the context of parens patriae and therapeutic jurisprudence, and support medical and public policy justifications for ethical uses of outpatient civil commitment laws for seriously mentally ill patients. (shrink)

Competency to be executed evaluations are conducted with a clear understanding that no physician-patient relationship exists. Treatment however, is not so neatly re-categorized in large measure because it involves the physician's active provision of the healing arts. A natural tension exists between what practices may be legally permissible and what are ethically acceptable. We present an overview of the existing positions on this matter in the process of framing our argument.

The belief that people convicted of crimes deserve punishment is commonplace. Yet the punitive conception of individual responsibility commonly associated with ‘just deserts’ exaggerates the moral meaning of criminal guilt, normalizes excessive punishment, and distracts from shared responsibility for social injustice. The problem is, many people who get caught up in the criminal justice system cannot reasonably be thought to deserve their fate. Mental illness, intellectual disability, addiction, trauma, and poverty are morally mitigating factors when it comes to assessing how (...) blameworthy a person is for criminal behavior. But with the exception of extreme forms of mental illness that fall into the very narrow legal category of ‘insanity,’ people who struggle with serious difficulties are not treated as less blameworthy by the criminal justice system. The criteria of legal guilt does not match up well with the moral concept of blameworthiness.The solution might seem to be somehow to refine legal practice to make blame more context-sensitive, but I argue that rather than try to revise our criminal justice practices to fit better with common notions of blame and desert, we should get out of the public blaming business altogether. A determination morally to condemn individual offenders is not helping us to resolve the disaster of mass incarceration or the problems faced by returning citizens. It does not help us to see clearly the connection between crime and other problems of social injustice, like poverty, lack of mental health care, drug addiction, racial discrimination, and violence. Were we to be less fixated on individual responsibility, and more cognizant of our shared responsibility to treat all members of society as equal persons, entitled to the same basic rights, liberties, and opportunities, we might be in a better position to work collectively to address problems of social injustice that contribute to the problem of crime. (shrink)

Medical assistance in dying has received considerable attention from many in the field of bioethics. Philosophers, theologians, lawyers, and clinicians of all sorts have engaged with many challenging aspects of this issue. Public debate, public policy, and the law have been enhanced by the varied disciplinary analyses. With the legalization of MAiD in Canada, some attention is now being turned to issues that have historically been overshadowed by the debate about whether to permit MAiD. One such issue is voluntary stopping (...) eating and drinking as an alternative to MAiD. In this paper, I will apply a legal lens to the issue. An understanding of whether VSED is legal provides a foundation for ethical reflection on whether it ought to be permitted. Is it permitted for those who prefer VSED to MAiD? Is it permitted for those who do not qualify for MAiD under our current legislation – for those who do not have a grievous and irremediable medical condition, for mature minors, for individuals whose sole underlying medical condition is a mental disorder and who do not otherwise meet the eligibility criteria, and for individuals who have lost capacity but had completed an advance directive? (shrink)

Medical assistance in dying (MAiD) has received considerable attention from many in the field of bioethics. Philosophers, theologians, lawyers, and clinicians of all sorts have engaged with many challenging aspects of this issue. Public debate, public policy, and the law have been enhanced by the varied disciplinary analyses. With the legalization of MAiD in Canada, some attention is now being turned to issues that have historically been overshadowed by the debate about whether to permit MAiD. One such issue is voluntary (...) stopping eating and drinking (VSED) as an alternative to MAiD. In this paper, I will apply a legal lens to the issue. An understanding of whether VSED is legal provides a foundation for ethical reflection on whether it ought to be permitted. Is it permitted for those who prefer VSED to MAiD? Is it permitted for those who do not qualify for MAiD under our current legislation – for those who do not have a grievous and irremediable medical condition, for mature minors, for individuals whose sole underlying medical condition is a mental disorder and who do not otherwise meet the eligibility criteria, and for individuals who have lost capacity but had completed an advance directive? (shrink)

No known cure exists for COVID-19, and medical practitioners are exhausted and at their wits’ end trying to find treatments that prevent patients from ending up in hospital or intensive care, or even dying. A variety of treatments tried by medical practitioners include standard registered medicine, investigational or so-called experimental, unapproved or preapproved medicines, emergency or compassionate-use authorised medicine and pre-market approved medicine. However, the medicines that can be accessed via each of these categories are at different stages of efficacy (...) testing and knowledge about adverse effects, dosages and risks. To obtain ethical and legal informed consent, medical practitioners must deal with a lot of medical uncertainty, and care must be taken to ensure that the patient understands the difference in risks they may be willing to take depending on the medicine’s stage of development. Often additional information is required to obtain ethical consent as opposed to legal consent. A purely legal approach to informed consent, especially when dealing with the medical uncertainties of health emergencies and pandemics, may lead to patients’ consent lacking in enough substance to be truly considered legal and ethical. Informed consent as respect for autonomy in this sense requires more than the patient’s explicit agreement or compliance with a certain treatment proposal. This article explains the difference in consent content attached to each different stage of a medicine’s development, especially considering the additional difficulties posed by obtaining truly informed consent during a pandemic with uncertain characteristics, treatment and solutions. (shrink)

Ethics and Law for the Health Professions is a cross-disciplinary medico-legal book whose previouseditions have been widely used in the medical world. This new 3rd edition is fully revised with all ethics and law topics updated to reflect recent developments. New chapters include dealing specifically with children, health care and the environment, infectious diseases, public health, and ethics and chronic disease. All law sections have been extensively re-visited by Dr Cameron Stewart. Its special features are its focus on a (...) clinically relevant approach, and its recognition that health care professionals are often confronted by legal issues and ethical issues at the same time. Health professionals have to satisfy both, and their legal advisers need to be aware of the dilemmas this can present. This book is careful to distinguish between ethics and law. Its chapters take account of all the health professions, and their differing responsibilities, and cover a very wide range of the issues they face. (shrink)

This is the first book to unpack the legal and ethical issues surrounding unauthorised intimate examinations during labour. The book uses feminist, socio-legal and philosophical tools to explore the issues of power, vulnerability and autonomy. The collection challenges the perception that the law adequately addresses different manifestations of unauthorised medical touch through the lens of women's experiences of unauthorised vaginal examinations during labour. The book unearths several broader themes that are of huge significance to lawyers and healthcare professionals (...) such as the legal status of women and their bodies. The book raises questions about women's experiences during childbirth in hospital settings. It explores the status of women's bodies during labour and childbirth where too easily they become objectified, and it raises important issues around consent. The book highlights links to the law on sexual offences and women's loss of power under the medical gaze. The book includes contributions from leading feminist philosophers, medical professionals, and academics in medicine and law, and offers pioneering analysis relevant to lawyers and healthcare professionals with an interest in medical law and ethics; feminist theory; criminal law; tort law; and human rights law. (shrink)

To what extent should parents be able to choose the kind of child they have? The unfortunate phrase 'designer baby' has become familiar in debates surrounding reproduction. As a reference to current possibilities the term is misleading, but the phrase may indicate a societal concern of some kind about control and choice in the course of reproduction. Typically, people can choose whether to have a child. They may also have an interest in choosing, to some extent, the conditions under which (...) they do so, such as whether they have a child with a serious disability or disease. The purpose of this book is to explore the difficult and controversial question of the appropriate ethical and legal extent of reproductive autonomy in this context. The book examines ethical, legal and public policy issues in prenatal screening, prenatal diagnosis (PND), selective abortion and preimplantation genetic diagnosis (PGD). It explores the ethics of these selection practices and the ability of current ethical guidelines and legal mechanisms, including the law on selective abortion and wrongful birth, to deal with advances in genetic and other knowledge in these areas. Unlike in the United States, in England the relevant law is not inherently rights-based, but the impact of the Human Rights Act 1998 inevitably raises questions about the proper scope of reproductive autonomy in this context. The implications of the analysis are considered for the development of relevant law, public policy and ethical guidelines and will be of interest to academics in medical law and ethics, health professionals, lawyers, those working on public policy and students with an interest in these issues. (shrink)

What place, if any, ought cultural considerations have when we blame and punish in the criminal law? Bringing together political and legal theorists Criminal Law and Cultural Diversity offers original and diverse discussions that go to the heart of both legal and political debates about multiculturalism, human agency, and responsibility.

This book offers a comparative study of the management of legal pluralism. The authors describe and analyse the way state and non-state legal systems acknowledge legal pluralism - defined as the coexistence of a state and non-state legal systems in the same space in respect of the same subject matter for the same population - and determine its consequences for their own purposes. The book sheds light on the management processes deployed by legal systems in (...) Africa, Canada, Central Europe and the South Pacific, the multitudinous factors circumscribing the action of systems and individuals with respect to legal pluralism, and the effects of management strategies and processes on systems as well as on individuals. The book offers fresh practical and analytical insight on applied legal pluralism, a fast-growing field of scholarship and professional practice. Drawing from a wealth of original empirical data collected in several countries by a multilingual and multidisciplinary team, it provides a thorough account of the intricate patterns of state and non-state practices with respect to legal pluralism. As the book's non-prescriptive approach helps to uncover and evaluate several biases or assumptions on the part of policy makers, scholars and development agencies regarding the nature and the consequences of legal pluralism, it will appeal to a wide range of scholars and practitioners in law, development studies, political science and social sciences. (shrink)

Law's Indigenous Ethics examines the revitalization of Indigenous peoples' relationship to their own laws and, in so doing, attempts to enrich Canadian constitutional law more generally. Organized around the seven Anishinaabe grandmother and grandfather teachings of love, truth, bravery, humility, wisdom, honesty, and respect, this book explores ethics in relation to Aboriginal issues including title, treaties, legal education, and residential schools. With characteristic depth and sensitivity, John Borrows brings insights drawn from philosophy, law, and political science to bear on (...) some of the most pressing issues that arise in contemplating the interaction between Canadian state law and Indigenous legal traditions. In the course of a wide-ranging but accessible inquiry, he discusses such topics as Indigenous agency, self-determination, legal pluralism, and power. In its use of Anishinaabe stories and methodologies drawn from the emerging field of Indigenous studies, Law's Indigenous Ethics makes a significant contribution to scholarly debate and is an essential resource for readers seeking a deeper understanding of Indigenous rights, societies, and cultures. (shrink)

Approaches to legal pluralism vary widely across the spectrum of different disciplines. They comprise normative and descriptive perspectives, focus both on legal pluralist realities as well as public debates, and address legal pluralism in a range of different societies with varying political, institutional and historical conditions. Emphasising an empirical research to contemporary legal pluralist settings in Muslim contexts, the present collected volume contributes to a deepened understanding of legal pluralist issues and realities through comparative examination. (...) This approach reveals some common features, such as the relevance of Islamic law in power struggles and in the construction of (state or national) identities, strategies of coping with coexisting sets of legal norms by the respective agents, or public debates about the risks induced by the recognition of religious institutions in migrant societies. At the same time, the studies contained in this volume reveal that legal pluralist settings often reflect very specific historical and social constellations, which demands caution towards any generalisation. The volume is based on papers presented at a conference in Münster (Germany) in 2016 and comprises contributions by Judith Koschorke, Karen Meeschaut, Yvonne Prief, Ulrike Qubaja, Werner de Saeger, Ido Shahar, Katrin Seidel, Konstantinos Tsitselikis, Vishal Vora and Ihsan Yilmaz. (shrink)

Our paper explores how the affective energies and cultural expectations set in motion by best-selling American sentimental novels like Hannah Foster's The Coquette and Susanna Rowson's Charlotte Temple informed the notorious mid-nineteenth-century American trial of Amelia Norman, who attempted to kill the man who seduced her. Once newspapers, defense lawyers, and reformers such as Lydia Maria Child recast the defendant as a sentimental heroine, the trial became about seduction, and Norman was acquitted against the weight of the evidence. Sentimental novels (...) turn on the contrast between the passive victim status of the heroine and the active libidinal quest of the rake-villain. As Cathy Davidson points out, this fiction is "about silence, subservience, stasis (the accepted attributes of women as traditionally defined) in contradistinction to conflicting impulses toward independence, action, and self expression (the ideals of the new American nation)." The seduction plot diverts attention from this disparity by establishing an affective solidarity between heroine and reader and elevating the ruined woman to a tragic status. The sentimental emplotment of Norman's life marshaled a powerful set of emotional responses and moral judgements on her behalf. Norman claimed insanity. And since sentimental heroines are supposed to go mad when they are seduced and abandoned, the jury was prepared to interpret her symptoms according to her lawyers' very strategy for establishing her innocence. Ultimately, however, Norman embodied the plight of the sentimental heroine at the same time that she contested her fictional counterpart's fate. In this way, her trial spectacularized the disparity which the sentimental novel conjures up and displaces but never resolves. The common law theory of coverture, which severely limited the legal personhood of married women, has received a great deal of scholarly attention. Cases like Norman's remind us that unmarried women were also subject to draconian constraints on their legal personhood. The tort of seduction is a key example. Legal historians trace the development of the seduction tort from its common-law origins, when men's property interest in women's bodies formed the basis of the cause of action, to 1851, when Field Code authors (including Norman's lawyer David Graham) persuaded several states to grant seduced women standing to bring their own cause of action. Consequently, courts were forced to reckon with the seduced woman as a moral agent capable of consenting to sex. As trials like Norman's demonstrate, sentimental novels helped lay the groundwork for this shift in the law by elucidating a subjectivity for the seduced woman. Yet the doctrinal implications of Norman's precedent-setting trial had a second, more ambiguous strain. Norman's sentimental strategy proved so powerful that men on trial for killing their wive's seducers appropriated it to bring their own stories before juries and to reinforce male sexual norms. In the end, then, Norman's trial fostered legal reform, but it also suggested - as Child's fictionalization of the case in "Rosenglory" recognized - that only sustained and multifaceted efforts to change cultural as well as legal norms could improve the sexual status of women. Scholars such as Wai Chee Dimock have argued for a focus "on the historical and historically shifting relations between law and literature" - a view we endorse. Where we differ from Dimock is in our diversion of attention away from abstract ideas of law laid out by treatise writers and philosophers in favor of law experienced and manipulated by individuals. So, too, we are interested less in representations of concepts such as justice in legal and literary texts than we are in the ways in which literature (broadly conceived) can create provisional and fragile opportunities for concrete instantiations of justice and even generate legal change (for good or ill). Going further, we would argue that to the extent legal change motivates rather than simply mirrors cultural change, it needs literature to be effective. Thus, we see no need to characterize - and indeed reject the depiction of - law as "a limited arena" in which ideas of morality have little place. This project, then, responds to Gregg Crane's call for attention to "the complex and slippery historical interactions of law and literature that shape and are shaped by an ever changing cultural idiom of justice." The extended story of Amelia Norman not only constitutes a case study in the inescapable interaction between the overlapping and interdependent discourses of law and literature, but also reveals the literary and legal consequences of that interaction. (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.

The revised classic on the professional and legal standards of school psychology This completely updated edition of the leading ethics and law guide provides ...

This new edition of Drucilla Cornell's highly acclaimed book includes a substantial new introduction by the author, which situates the book within current ...