Journal of law and health最新文献

In recent years, psychiatrists have become ever more prevalent in American courtrooms. Consequently, the issue of when the usual rules of medical ethics should apply to forensic psychiatric encounters has taken on increased importance and is a continuing topic of discussion among both legal and medical scholars. A number of approaches to the problem of forensic psychiatric ethics have been proposed, but none adequately addresses the issues that arise when a forensic encounter develops therapeutic characteristics. This article looks to the rules governing the lawyer-client relationship as a model for a new approach to forensic psychiatric ethics. This new model focuses on the expectations of the evaluee and the ways in which the evaluating psychiatrist shapes those expectations to determine how and when the rules of medical ethics should apply to forensic psychiatric encounters. This article describes and analyzes three previously proposed approaches to that question and the closely related question of when and how a doctor-patient relationship can form in the context of a forensic psychiatric evaluation. It also explains why each of these prior approaches does not sufficiently address the issues that arise when a forensic encounter takes on therapeutic characteristics. Finally, it proposes a new approach that draws inspiration from the rules governing the lawyer-client relationship.

Though Veteran Affairs has provided crucial life sustaining--and often lifesaving--treatments to returning soldiers, the substantial and ever-increasing rates of veteran suicides, drug addictions, and criminal behavior indicate a need for broader options in treatment. One of the most profound discoveries uncovered through MDMA-assisted psychotherapy research is MDMA's facilitation of the alleviation of addictive behavior in subjects, and, as a result, an alleviation of addictions in general. Addiction is one of the key symptoms of post-traumatic stress disorder (PTSD) and drug abuse plays a large role in the other afflictions suffered by veterans, namely criminal activity and a high rate of suicide. If there is any hope of treating this debilitating psychotic phenomenon--or at least containing its rapid growth and addressing its profound depth--alternative remedies as a means must not be ignored for a normative end. Accordingly, this note argues that physicians must be able to treat PTSD victims through MDMA-assisted psychotherapy, an alternative remedy to PTSD treatment that has shown overwhelming promise in domestic and international medical research. In doing so, it first discusses 21 U.S.C.A. Sec. 812, which labels MDMA as a Schedule I substance and prohibits healthcare professionals from using MDMA-assisted psychotherapy to treat PTSD victims. Next, the note asserts that the Drug Enforcement Agency (DEA) erroneously categorized MDMA as a substance lacking an accepted medical use and lack of safety under medical supervision. The note sets out studies, domestic and international, where clinical testing of MDMA-assisted therapy to treat PTSD have been met with overwhelmingly positive results. Finally, the note argues that MDMA's accepted medical use, low physical and psychological dependence, and known safety under medical supervision support its classification as a Schedule III under the CSA, and that the 1986 classification of MDMA as a Schedule I narcotic was, and continues to be, an arbitrary and capricious agency interpretation of an otherwise viable piece of congressional legislation.

There are many barriers to healthcare for the general population that has been documented throughout the years, with one particularly affected group being individuals with disabilities. One identified healthcare barrier for individuals with disabilities is the inability to gain access to the healthcare system through health insurance. While many attempts have been made to resolve this issue, serious problems have yet to be resolved. The Patient Protection Affordable Care Act (PPACA) attempted to solve the issue by expanding Health Insurance Portability and Accountability Act of 1996's (HIPAA) current regulations on employee wellness programs. The relevant regulations govern employee wellness programs to allow employers to offer their employees greater incentives for meeting employer-defined health targets. This expansion has an adverse effect because it disadvantages groups like individuals with disabilities by penalizing them through higher premiums or cost sharing when they are unable to meet wellness targets. This article argues PPACA's requirement for employee wellness programs provides additional barriers to healthcare insurance for individuals with disabilities. Part I of this Comment describes how the healthcare industry discriminates against individuals with disabilities by continuing to deny them meaningful access to healthcare through payment of higher premiums. Part II examines how the wellness program provision allows employers to shift the cost of medical coverage to the employee for failure to participate in the wellness program. Part III summarizes how the ADA's reasonable requirement places an obligation on employers to make reasonable accommodation to individuals with disabilities, which will improve the health of working individuals with disabilities. Part IV concludes with suggestions for further reform.

Doctors make mistakes--preventable medical mistakes--that kill or seriously injure patients. The best way to reduce these preventable errors is through a medical peer review process typically referred to as a "morbidity and mortality conference." However, over the past twenty years, federal and state courts, state legislatures, and state voters have effectively gutted the morbidity and mortality conference (M+M) as a remedial and preventative tool, resulting in tens of thousands of unnecessary deaths every year. Doctors need our help restoring the effectiveness of M+Ms. Congress has created the means to do so; now, all the courts need do is use it. Otherwise, what has been happening over the last two decades will continue--physicians will fear the M+M, will either not participate in M+Ms or not participate fully, medical errors will not be thoroughly investigated and corrected, and the same preventable medical mistakes will continue to occur because physicians are scared if they admit during an M+M that they committed an error then, in a subsequent medical malpractice lawsuit, their admission will be used against them to prove negligence and liability. Part I of this essay summarizes the extent of the problem--many call it a crisis--of preventable deaths plaguing U.S. hospitals. Part II explains peer review, both in the context of physician credentialing/hiring and M+Ms, and the legal protections afforded under the provisions of immunity, confidentiality, and privilege. Part III discusses how federal and state court decisions, state legislative enactments, and voter initiatives have weakened existing protections for peer review, especially regarding M+Ms. Part IV describes the PSQIA and how it can--and should--be the solution to preventable hospital deaths. Part V concludes with a summation of the argument that courts employ the PSQIA privilege to protect M+Ms, and that physicians and hospitals do their part by fulfilling the requirements of the PSQIA such that they may invoke the privilege therein contained.

There are a multitude of dilemmas faced today by over 3 million significantly disabled Americans, many of whom depend on Medicaid for Long-Term Services and Supports (LTSS) in obtaining the services they need to simply live. While the landmark 1990 Americans with Disabilities Act (ADA) has done a lot to improve the lives of people with disabilities, the reality is that using Medicaid as the vehicle for funding LTSS places unreasonable restrictions on disabled people who want to live independent lives and be as successful as possible. The Federal Government must change funding for LTSS in order to provide disabled Americans with real choices regarding living arrangements and maximize their earning potential without fear of being deprived of support they cannot live without. Part II of this note provides background information on LTSS (what they are, who uses them, what they cost, and how they are currently funded). Part III examines the Medicaid Program and specifically Medicaid HCBS17 Waiver Programs, which provide the bulk of LTSS funding today. A brief history of the federal laws, amendments, and policies that have impacted Medicaid LTSS are provided. Part IV analyzes an alternative to Medicaid for LTSS funding for those working-age disabled individuals who would not otherwise be Medicaid eligible. This section specifically focuses on recommendations from the congressionally established Commission on Long-Term Care and a pilot program proposed by the American Association for People with Disabilities (AAPD). Finally, Part V concludes that the Federal government must take action to establish a stand-alone, non-Medicaid Program to provide LTSS for working-age disabled Americans who are capable of working and living independently.

The case of R. (Quintavalle) v. Human Fertilisation Embryology Authority (and Secretary of State for Health) presents a handful of legal problems. The biggest legal query to arise from the case is the inevitable harvest of babies, toddlers and very young children for their bone marrow. This article unpacks the judicial story behind Quintavalle to reveal how the strict provisions of the Human Fertilisation and Embryology Act 1990--namely 'suitable condition' under schedule 2 paragraph 1(1)(a) and 'treatment services' and 'assisting' under section 2(1)--were widely misinterpreted to introduce the social selection of embryos into law. The legal loopholes created by the judgment (embryo wastage, welfare, eugenics and the legality of child harvest in particular) are also identified. It will be concluded that screening for a tissue match is social selection despite arguments to the contrary and that parents are not yet entitled in law to harvest a very young child for bone marrow, making the creation of a saviour sibling under the 1990 Act as a result of Quintavalle ultimately futile.

This note argues that the Ohio Department of Rehabilitation and Corrections (ODRC) should not obtain lethal injection drugs from unregulated compounding pharmacies. Ohio should only purchase drugs from an FDA-registered outsourcing facility. Part II explores the death sentence statute in Ohio and the use of compounding pharmacies. Part III compares Oklahoma's statute in conjunction with Ohio and illustrates the adverse effects by utilizing compounding pharmacies. Part IV proposes recommendations to Ohio's execution protocol. Part V provides a conclusion.

Because obesity and its associated health problems have been largely attributed to poor self-control, laziness, and various other personal failings, society has been unwilling to assign blame to food manufacturers for their role in contributing to this problem. But, as consumers are becoming more aware of the significantly harmful effect that poor diets can have on a person's heath, the scales may be tipping in favor of bringing "Big Food" to court. Food manufacturers, however, are not exactly vulnerable. Armed with precedent disputing the causal link between consumption of fast food and adverse health effects, judicially-created barriers to admitting epidemiologic evidence, and the defense of personal responsibility, food plaintiffs face an uphill battle. This Comment explores that reality.

Byrne argues that disparities among different courts' interpretations of the Federal Rules of Civil Procedure amendments have caused confusion for those in law and healthcare. Additional amendments to the FRCP are necessary to provide clarity, especially in the area of healthcare electronic discovery. Specifically, future amendments should include: 1. Enforcing the "Meet and Confer" process, especially as related to e-discovery and ESI 2. Clear specification about when the duty to preserve information begins 3. Delineating reasonable and consistent standards for production of information 4. Outlining the details for when sanctions for failing to retain ESI are appropriate.