Functionalist justifications for the consideration requirement, and the many criticisms of them, are well developed in the literature. But Peter Benson offers a different sort of justification. He argues that contracts are transfers of ownership, and he builds his transfer theory around the consideration requirement. He claims that a bilateral and mutual act is required for ownership to be transferred. Therefore, he argues that consideration is a central part of what a contract inherently is because it works to ensure that (...) there is a bilateral and mutual relationship between the parties. In this article, I challenge this view. I accept for the sake of argument that contracts are transfers of ownership and that they must be bilateral and mutual acts. However, I argue that a sufficiently bilateral relationship can be established, even without consideration, through the acts of offer and acceptance. In doing so, I demonstrate that it is not necessary to view the doctrines of offer, acceptance, and consideration as being inextricably linked as Benson does. Moreover, drawing on insights from the civil law tradition, I show that a relationship of mutuality can be established in contracts that are not backed by consideration. Since I demonstrate that contracts can be seen as transfers of ownership even without consideration, I argue that the bulk of Benson’s transfer theory could remain intact if the consideration requirement were to be removed. Finally, I argue that, in light of recent developments in many common law jurisdictions, Benson’s transfer theory must be understood without the consideration requirement in order for it to withstand the test of time. (shrink)

BACKGROUND: Little is known about how hospitalized patients share decisions with physicians. METHODS: We conducted an observational study of patient-doctor communication on an inpatient medicine service among 18 hospitalized patients and 9 physicians. A research assistant (RA) approached newly hospitalized patients and their physicians before morning rounds and obtained consent. The RA audio recorded morning rounds, and then separately interviewed both patient and physician. Coding was done using integrated analysis. RESULTS: Most patients were white (61%) and half were female. Most (...) physicians were male (66%) and of Southeast Asian descent (66%). All physicians explained the plan of care to the patients; most believed that their patient understood. However, many patients did not. Physicians rarely asked the patient for their opinion. In all those cases, the decision had been made previously by the doctors. No decisions were made with the patient. Patients sometimes disagreed. CONCLUSIONS: Shared decision-making may not be the norm in hospital care. Although physicians do explain treatment plans, many hospitalized patients do not understand enough to share in decisions. When patients do assert their opinion, it can result in conflict. PRACTICE IMPLICATIONS: Some hospitalized patients are interested in discussing treatment. Improving hospital communication can foster patient autonomy. (shrink)

An estimated 700,000 people in the United States have "long COVID," that is, symptoms of COVID-19 persisting beyond three weeks. COVID-19 and its long-term sequelae are strongly influenced by social determinants such as poverty and by structural inequalities such as racism and discrimination. Primary care providers are in a unique position to provide and coordinate care for vulnerable patients with long COVID. Policy measures should include strengthening primary care, optimizing data quality, and addressing the multiple nested domains of inequity.

The UN Convention against Torture defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” by someone acting in an official capacity for purposes such as obtaining a confession or punishing or intimidating that person.1 It is unethical for healthcare professionals to participate in torture, including any use of medical knowledge or skill to facilitate torture or allow it to continue, or to be present during torture.2-7 Yet medical participation (...) in torture has taken place throughout the world and was a prominent feature of the US interrogation practice in military and Central Intelligence Agency (CIA) detention facilities in the years after the attacks of 11 September 2001.8-11 Little attention has been paid, however, to how a regime of torture affects the ability of health professionals to meet their obligations regarding routine clinical care for detainees. -/- The 2016 release of previously classified portions of guideline from the CIA regarding medical practice in its secret detention facilities sheds light on that question. These show that the CIA instructed healthcare professions to subordinate their fundamental ethical obligations regarding professional standards of care to further the objectives of the torturers. (shrink)

The American Journal of Bioethics, Volume 12, Issue 5, Page 15-16, May 2012.

This is a work of constitutional theory that explores the nature of American constitutional interpretation through a reconsideration of the long-standing debate between the interpretive theories of originalism and nonoriginalism. The book presents the novel argument that a critique of the underlying premises of originalism dissolves not just originalism but nonoriginalism as well, which leads to the recognition that constitutional interpretation is already and always structured. By their fidelity to the Constitution, Americans are a textual people in that they live (...) in and through the terms of a fundamental text. On the basis of this central idea, the book presents a new understanding of constitutional interpretation and an innovative account of the democratic legitimacy and binding capacity of the Constitution. (shrink)

The more we know about medicine, the more we realize that many health questions have no one true answer. Realizing this, and thinking carefully about how medicine asks patients to treat their conditions, leads us to some questions. How reliable are the guidelines that might form the basis of doctors’ advice? Is it wrong, after all, to base an approach to medicine on patients’ preferences? And, given that there is often a distance between the treatment a doctor advises and what (...) a patient would like to do, how do we bridge the gap—especially in a health culture of inequality, technical proficiency, and increasing costs? In practical, engaging, narrative-driven chapters about common health conditions that millions of Americans are familiar with—depression and high blood pressure, arthritis and diabetes—Dr. Zackary Berger of Johns Hopkins demystifies the often bewildering disconnect between patients and doctors and asks us all to think more clearly about how best to protect and cure the human body. (shrink)

Patient centred diagnosis is best practised through shared decision making; an iterative dialogue between doctor and patient, whichrespects a patient’s needs, values, preferences, and circumstances. -/- Shared decision making for diagnostic situations differs fundamentally from that for treatment decisions. This has important implications when considering its practical application. -/- The nature of dialogue should be tailored to the specific diagnostic decision; scenarios with higher stakes or uncertainty usually require more detailed conversations.

In contemporary bioethics, the autonomy of the patient has assumed considerable importance. Progressing from a more limited notion of informed consent, shared decision making calls upon patients to voice the desires and preferences of their authentic self, engaging in choice among alternatives as a way to exercise deeply held values. One influential opinion in Jewish bioethics holds that Jewish law, in contradistinction to secular bioethics, limits the patient's exercise of autonomy only in those instances in which treatment choices are sensitive (...) to preferences. Here, we analyze a discussion in the Mishna, a foundational text of rabbinic Judaism, regarding patient autonomy in the setting of religiously mandated fasting, and commentaries in the Babylonian and Palestinian Talmuds, finding both a more expansive notion of such autonomy and a potential metaphysical grounding for it in the importance of patient self-knowledge. (shrink)

One of the best-known principles of halakha is that Shabbat is violated to save a life. Who does this saving and how do we know that a life is in danger? What categories of illness violate Shabbat and who decides? A historical-sociological analysis of the roles played by Jew, non-Jew, and physician according to the approach of “medical cosmology” can help us understand the differences in the approach of the Shulchan Aruch compared to later decisors (e.g., the Mishnah Berurah). Such (...) differences illuminate how premodern medical triage coexisted with a different halakhic understanding than that of the biomedical age. (shrink)

We discuss the role of prior authorization (PA) in supporting patient-centered care (PCC) by directing health system resources and thus the ability to better meet the needs of individual patients. We begin with an account of PCC as a standard that should be aimed for in patient care. In order to achieve widespread PCC, appropriate resource management is essential in a healthcare system. This brings us to PA, and we present an idealized view of PA in order to argue how (...) at its best, it can contribute to the provision of PCC. PA is a means of cost saving and as such it has mixed success. The example of the US demonstrates how implementation of PA has increased health inequalities whereas best practice has the potential to reduce them. In contrast, systems of universal coverage, like those in Europe, may use the cost savings of PA to better address individuals' care and PCC. The conclusion we offer therefore is an optimistic one, pointing towards areas of supportive overlap between PCC and PA where usually the incongruities are most evident. (shrink)

Providers and patients bring different understandings of health and disease to their encounters in the hospital setting. The literature to date only infrequently addresses patient and provider concordance on the reported reason for hospitalization, that is, whether they express this reason in similar ways. An agreement or common ground between such understandings can serve as a basis for future communication regarding an illness and its treatment. We interviewed a convenience sample of patients on the medical wards of an urban academic (...) medical center. We asked subjects to state the reason why their doctors admitted them to the hospital, and then compared their statement with the reason in the medical record. We defined concordance on reported reason for hospitalization as agreement between the patient’s report and the reason abstracted from the chart. We interviewed and abstracted chart data from a total of 46 subjects. Concordance on reported reason for hospitalization was present in 24 (52%) and discordance in 17 (37%); 5 patients (11%) could not give any reason for their hospitalization. Among the 17 patients whose report was discordant with their chart, 12 (71%) reported a different organ system than was recorded in the chart. A significant proportion of medical inpatients could not state their physicians’ reason for admission. In addition, patients who identify a different reason for hospitalization than the chart often give a different organ system altogether. Providers should explore patient understanding of the reason for their hospitalization to facilitate communication and shared decision making. (shrink)

The last time you went to your doctor, you might have emerged feeling dissatisfied and disoriented. Nothing was clear after you left the office, and you don’t know whether it’s your fault or the doctor’s. While patients need to take control of the visit and set their agenda, the latest research shows that doctors and patients need to connect on a more emotional level as well. -/- In Talking to Your Doctor, readers will learn to: -/- •Talk to your doctor—and (...) get your doctor to talk to you • Remake the relationship with your doctor, and our health care system, on the basis of good communication •Make sure your visit with the doctor is productive and meets your needs •Help yourself and others avoid over-testing and over-treatment -/- Starting with the conversation can redress imbalances and put the relationship of doctor and patient, and eventually the entire health care system, back on a healthy footing. Using illuminating model dialogues, real transcripts from the clinic and hospital, resources for communication improvement, and a brief history of doctor-patient communication, the author helps readers develop strategies for obtaining better care from their doctors, from the minute they step into the exam room. (shrink)

In a rigorous systematic review, Dukhanin and colleagues categorize metrics and evaluative tools of the engagement of patient, public, consumer, and community in decision-making in healthcare institutions and systems. The review itself is ably done and the categorizations lead to a useful understanding of the necessary elements of engagement, and a suite of measures relevant to implementing engagement in systems. Nevertheless, the question remains whether the engagement of patient representatives in institutional or systemic deliberations will lead to improved clinical outcomes (...) or increased engagement of individual patients themselves in care. Attention to the conceptual foundations of patient engagement would help make this systematic review relevant to the clinical care of patients. (shrink)

Medicine is not merely a job that requires technical expertise, but a profession concerned with making the best decisions and recommendations with reference to, and in consultation with, the patient. This means that the skill set required for healthcare professionals in order to provide good care is a combination of scientific knowledge, technical aptitude, and affective qualities or virtues such as compassion and empathy.

(2013). Review of Peter Ubel, Critical Decisions: How You and Your Doctor Can Make the Right Medical Choices Together. The American Journal of Bioethics: Vol. 13, No. 4, pp. 53-54. doi: 10.1080/15265161.2013.768866.

Context: Comparing the Covid-19 related experiences of vulnerable groups can help to improve public health.?The United States and the United Kingdom are both characterized by underfunded public health in the context of racist systems. We reviewed differences in Covid-19 outcomes between groups in the US and UK and compared intergroup differences between the two countries. Methods: The scoping review analyzed articles published in English during the Covid-19 pandemic focusing on the US or the UK. Using Scopus and PubMed, research articles (...) were chosen based on titles, abstracts, and relevance to the research question. Certain demographic groups known to be differentially affected by Covid-19 were chosen a priori for inclusion. Data was extracted by the first author and reviewed by senior authors. 63 studies met the inclusion criteria. Results: Two studies compared the US and UK. One found that minority status is an important social determinant of health (SDOH) of Covid-19 related health outcomes in both countries, likely through association with other SDOH. Another found that the risk of confirmed infection was higher in African-Americans, Hispanic Americans, and Asian Americans in the US and in African-Caribbean/Black-Africans, South-Asians, and Mixed-race people in the UK, compared with their respective White peers. Asian ethnicity is subject to different definitions in the US and the UK. Individual articles focusing on either the US or the UK also found that, in both countries, essential workers were impacted; those with disabilities were more often affected by Covid-19 related comorbidities in both countries. In addition, in both the US and the UK, people living in multigenerational families were more susceptible to Covid-19. Misclassification of causes of morbidity and mortality was noted in both countries. Discussion and conclusion: A limited literature indicates that, in both the US and UK, non-White populations were more affected by the Covid-19 pandemic, possibly due to association of SDOH with racist systems. Racial definitions differ between these countries and this needs further research. In both countries, data focused on LGBTQ+ groups and people with disabilities is lacking. (shrink)

Shared decision-making is a well-recognized model to guide decision-making in medical care. However, the shared decision-making concept can become exceedingly complex in adolescent patients with varying degrees of autonomy who have most of their medical decisions made by their parents or legal guardians. The complexity increases further in ethically difficult situations such as terminal illness. In contrast to the typical patient-physician dyad, shared decision-making in adolescents requires a decision-making triad that also includes the parents or guardians. The multifactorial nature of (...) these cases can overwhelm treatment teams, with minimal guidance on how to best approach the patient–parents–physician dynamic in an ethically appropriate manner. Estimated time left to live is the paramount ethical consideration for such cases with respect to shared decision-making. This paper offers a sliding scale to serve as a grounding reference for clinicians who care for terminally ill adolescents and hospital ethics committee members for initiating and guiding the ethical discussion for these patients. This paper also elucidates several other ethically salient features inherent to many of these cases, including quality of life, treatability of disease, cultural influences, among others. Yet how each of these variables is weighed is dependent upon the specific circumstances of each individual case. Ultimately, shared decision-making in adolescent patients with terminal illnesses must be a collaborative and ongoing process that thoughtfully weighs the values and ethical responsibilities of the patient, parents, and physician to ideally reconcile differences and come to a consensus on the best management option for each individual patient. (shrink)

U.S. immigration policies and enforcement can make immigrants fearful of accessing healthcare. Although current immigration policies restrict enforcement in “sensitive locations” including healthcare facilities, there are reports of enforcement actions in such settings.

OBJECTIVE: How outside factors affect physician decision making remains an open question of vital importance. We sought to investigate the importance of various influences on physician decision making when clinical guidelines differ from patient preference. -/- METHODS: An online survey asking 469 primary care providers (PCPs) across four practice sites whether they would order magnetic resonance imaging for a patient with uncomplicated back pain. Participants were randomized to one of four scenarios: a patient's preference for imaging (control), a patient's preference (...) plus a colleague's opinion against imaging (colleague), a patient's preference plus a professional society's recommendation against imaging (profession), or a patient's preference plus an accountable care organization's quality metric that measures physician use of imaging (ACO). Demographic information and the reasoning behind participants' decisions also were obtained. -/- RESULTS: A total of 168 PCPs completed the survey, yielding a 36% completion rate. A majority chose not to pursue imaging: control 68%, colleague 85%, profession 87%, and ACO 78%. Multivariate logistic regression revealed that participants were more likely not to order advanced imaging only when reminded of a professional society recommendation (P = 0.017). Regression also suggested that practice site exerted an effect on the primary outcome. Evidence-based medicine and clinical judgment were the most cited reasons for the decision. -/- CONCLUSIONS: Our results reinforce the potential to leverage professional societies to advance evidence-based medicine and reduce unnecessary testing. At the same time, practice site appeared to exert influence, suggesting that these recommendations must be part of local institutional culture to be effective. (shrink)