Pub Date : 2019-05-01DOI: 10.7590/221354019X155385183386162213-5405
S. Svoboda, P. W. Adler, R. S. Howe
In 2016, we argued that non-therapeutic male circumcision before the age of consent is unethical and unlawful. In a response article published in 2018, Morris and colleagues sought to undermine our claims, raising a number of arguments that, we will demonstrate in the present essay, lack both logical and empirical support. The authors also advanced the unprecedented suggestion that physicians have an ethical duty to recommend male circumcision to parents. Here, we evaluate this novel suggestion and find it lacking. Indeed, as we will argue, the opposite is true: physicians are ethically proscribed from recommending and performing medically unnecessary surgery on healthy children, including the genitalia of both boys and girls. Moreover, boys have the same legal rights as girls under US and international law to bodily integrity and self-determination; parents’ constitutional rights do not extend to modifying their healthy children’s bodies; and even if parents had such rights, it is unlawful for physicians to circumcise healthy boys.
{"title":"Is Circumcision Unethical and Unlawful? A Response to Morris et sl.","authors":"S. Svoboda, P. W. Adler, R. S. Howe","doi":"10.7590/221354019X155385183386162213-5405","DOIUrl":"https://doi.org/10.7590/221354019X155385183386162213-5405","url":null,"abstract":"In 2016, we argued that non-therapeutic male circumcision before the age of consent is unethical and unlawful. In a response article published in 2018, Morris and colleagues sought to undermine our claims, raising a number of arguments that, we will demonstrate in the present essay, lack both logical and empirical support. The authors also advanced the unprecedented suggestion that physicians have an ethical duty to recommend male circumcision to parents. Here, we evaluate this novel suggestion and find it lacking. Indeed, as we will argue, the opposite is true: physicians are ethically proscribed from recommending and performing medically unnecessary surgery on healthy children, including the genitalia of both boys and girls. Moreover, boys have the same legal rights as girls under US and international law to bodily integrity and self-determination; parents’ constitutional rights do not extend to modifying their healthy children’s bodies; and even if parents had such rights, it is unlawful for physicians to circumcise healthy boys.","PeriodicalId":91323,"journal":{"name":"Journal of medical law and ethics","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43950595","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-05-01DOI: 10.7590/221354019X15538518338599
A. Exter
The 2006 Dutch health insurance reforms introduced an alternative mechanism to settle disputes. This so-called “binding advice” is a binding third-party ruling to resolve disputes on the denial of coverage and the refusal to reimburse health services. More than 12 years after it was introduced, the alternative dispute resolution (‘ADR’) regime gives reason for concern: legal criteria are interpreted differently by the ADR entity and the courts, thus causing inequalities in health care access under the Dutch Health Insurance Act. It is concluded that the privatisation of formal ad-judication has largely frustrated citizens claiming access to medical technologies satisfying the ‘international medical science and practice’ test. It is therefore recommended that citizens opt out for the default option, challenging health insurance disputes in court.
{"title":"Dutch Health Insurance Dispute Resolution And Fake Courts","authors":"A. Exter","doi":"10.7590/221354019X15538518338599","DOIUrl":"https://doi.org/10.7590/221354019X15538518338599","url":null,"abstract":"The 2006 Dutch health insurance reforms introduced an alternative mechanism to settle disputes. This so-called “binding advice” is a binding third-party ruling to resolve disputes on the denial of coverage and the refusal to reimburse health services. More than 12 years after it was introduced, the alternative dispute resolution (‘ADR’) regime gives reason for concern: legal criteria are interpreted differently by the ADR entity and the courts, thus causing inequalities in health care access under the Dutch Health Insurance Act. It is concluded that the privatisation of formal ad-judication has largely frustrated citizens claiming access to medical technologies satisfying the ‘international medical science and practice’ test. It is therefore recommended that citizens opt out for the default option, challenging health insurance disputes in court.","PeriodicalId":91323,"journal":{"name":"Journal of medical law and ethics","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46369805","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-05-01DOI: 10.7590/221354019X15538518338571
S. Christie
This paper considers the interpretation of section 25(2)(c) of the Mental Capacity Act 2005, on the relevance of subsequent inconsistent behaviour by the maker of an advance decision. Consideration of the very few cases, and analysis of how existing rules of statutory interpretation could be applied, identifies a particular problem in relation to those who appear to contradict their own prior decision, but do so after they have lost capacity. This highlights an issue which has already been raised in the philosophical literature where there has been some discussion of the relevance and moral authority of our own prior decisions over our future selves, particularly where our future self appears content with a situation which would have been intolerable to our prior self. The incidence of cases of this type is not confined to the realms of philosophy; indeed these kinds of situations are likely to increase, given predictions of the rise in cases of dementia over the next 30 years, and so we will require an unambiguous legal framework to deal with assessing the validity of an individual’s advance decision, and the ramifications of acting upon it. The law, as currently stated, is not clear in respect of these types of cases, and should be revised to provide clarity, and with it the greater confidence and uptake in advance planning desired by central government.
{"title":"Advance Decisions, Dementia and Subsequent Inconsistent Behaviour: a Call for Greater Clarity In the Law","authors":"S. Christie","doi":"10.7590/221354019X15538518338571","DOIUrl":"https://doi.org/10.7590/221354019X15538518338571","url":null,"abstract":"This paper considers the interpretation of section 25(2)(c) of the Mental Capacity Act 2005, on the relevance of subsequent inconsistent behaviour by the maker of an advance decision. Consideration of the very few cases, and analysis of how existing rules of statutory interpretation could be applied, identifies a particular problem in relation to those who appear to contradict their own prior decision, but do so after they have lost capacity. This highlights an issue which has already been raised in the philosophical literature where there has been some discussion of the relevance and moral authority of our own prior decisions over our future selves, particularly where our future self appears content with a situation which would have been intolerable to our prior self. The incidence of cases of this type is not confined to the realms of philosophy; indeed these kinds of situations are likely to increase, given predictions of the rise in cases of dementia over the next 30 years, and so we will require an unambiguous legal framework to deal with assessing the validity of an individual’s advance decision, and the ramifications of acting upon it. The law, as currently stated, is not clear in respect of these types of cases, and should be revised to provide clarity, and with it the greater confidence and uptake in advance planning desired by central government.","PeriodicalId":91323,"journal":{"name":"Journal of medical law and ethics","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41517288","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-12-31DOI: 10.7590/221354018x15446248389253
T. Allen
Based on the author's unrivalled experience of mediating clinical negligence and personal injury claims in England, Ireland and South Africa, coupled with his fifteen years of writing about the place of mediation in civil justice, this article discusses the nature and objectives of mediation in the context both of clinical negligence and right-to-life claims. He sets his views against his own redefinition of mediation as 'a confidential complex conversation facilitated by a skilled neutral', centred on his argument that engagement in the mediation process is as important for participants as achieving settlement outcomes. This both justifies its regular use in right-to-life claims and explains the growth of mediation as a particularly appropriate process for progressing clinical negligence claims and meeting the needs and objectives of claimants and clinicians in such disputes, even where one party seeks to persuade the other that their claim or defence is without any merit.
{"title":"The Extremities of Mediation and the Importance of Process","authors":"T. Allen","doi":"10.7590/221354018x15446248389253","DOIUrl":"https://doi.org/10.7590/221354018x15446248389253","url":null,"abstract":"Based on the author's unrivalled experience of mediating clinical negligence and personal injury claims in England, Ireland and South Africa, coupled with his fifteen years of writing about the place of mediation in civil justice, this article discusses the nature and objectives of\u0000 mediation in the context both of clinical negligence and right-to-life claims. He sets his views against his own redefinition of mediation as 'a confidential complex conversation facilitated by a skilled neutral', centred on his argument that engagement in the mediation process is as important\u0000 for participants as achieving settlement outcomes. This both justifies its regular use in right-to-life claims and explains the growth of mediation as a particularly appropriate process for progressing clinical negligence claims and meeting the needs and objectives of claimants and clinicians\u0000 in such disputes, even where one party seeks to persuade the other that their claim or defence is without any merit.","PeriodicalId":91323,"journal":{"name":"Journal of medical law and ethics","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46203746","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-12-31DOI: 10.7590/221354018x15446248389235
P. Randolph
Although mediation is often preferable to litigation when resolving medical negligence claims, the process may not be a pleasant one for both sides to the dispute. This is mainly due to the intensity of the emotions involved and a number of unseen factors at play. This article highlights a range of psychological issues which the mediator would need to understand and consider when mediating conflicts, including in the healthcare context. The process can, if sensitively and adroitly handled, transform this into a positive experience for the disputants. This could, in turn, lead to productive outcomes.
{"title":"Spoonful of Mediation Helps the Medicine Go Down","authors":"P. Randolph","doi":"10.7590/221354018x15446248389235","DOIUrl":"https://doi.org/10.7590/221354018x15446248389235","url":null,"abstract":"Although mediation is often preferable to litigation when resolving medical negligence claims, the process may not be a pleasant one for both sides to the dispute. This is mainly due to the intensity of the emotions involved and a number of unseen factors at play. This article highlights\u0000 a range of psychological issues which the mediator would need to understand and consider when mediating conflicts, including in the healthcare context. The process can, if sensitively and adroitly handled, transform this into a positive experience for the disputants. This could, in turn, lead\u0000 to productive outcomes.","PeriodicalId":91323,"journal":{"name":"Journal of medical law and ethics","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41580045","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-12-31DOI: 10.7590/221354018x15446248389217
Emma R. McAndry
Mediation in the UK has developed dramatically over the years and the UCLan Centre for Mediation, since its inception in 2014, has sought to embrace this growth. This article explores the history and development of mediation, and in particular the more recent shift in the legal landscape from litigation towards this alternative. It then documents the range of activities which the Centre undertakes, including the provision of professional and academic trainings in mediation, and the delivery of mediation services to the local community.
{"title":"UCLan Centre for Mediation: Embracing Change","authors":"Emma R. McAndry","doi":"10.7590/221354018x15446248389217","DOIUrl":"https://doi.org/10.7590/221354018x15446248389217","url":null,"abstract":"Mediation in the UK has developed dramatically over the years and the UCLan Centre for Mediation, since its inception in 2014, has sought to embrace this growth. This article explores the history and development of mediation, and in particular the more recent shift in the legal landscape\u0000 from litigation towards this alternative. It then documents the range of activities which the Centre undertakes, including the provision of professional and academic trainings in mediation, and the delivery of mediation services to the local community.","PeriodicalId":91323,"journal":{"name":"Journal of medical law and ethics","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46650311","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-12-01DOI: 10.7590/221354018x15446248389244
K. Choong
Mr Justice Francis ended his judgment in Great Ormond Street Hospital v Yates, Gard and Gard with the recommendation that 'mediation should be attempted in all cases such as this one'. Although this gave the impression that mediation would be unquestionably beneficial in the Gard case and other 'medical futility' cases where the patient is incompetent, this paper contends that this is not as straightforward as it might at first appear. With the general absence of a middle ground and with the law in such cases frequently on doctors' side, mediation's potential for a satisfactory resolution of medical futility conflicts is arguably limited.
弗朗西斯法官在Great Ormond Street Hospital诉Yates，Gard and Gard一案中结束了他的判决，他建议“在所有此类案件中都应尝试调解”。尽管这给人的印象是，在Gard案和其他患者不称职的“医疗徒劳”案件中，调解无疑是有益的，但本文认为，这并不像最初看起来那么简单。由于普遍缺乏中间立场，而且此类案件中的法律经常站在医生一边，调解在令人满意地解决医疗徒劳冲突方面的潜力可以说是有限的。
{"title":"Can 'Medical Futility' Conflicts be Mediated?","authors":"K. Choong","doi":"10.7590/221354018x15446248389244","DOIUrl":"https://doi.org/10.7590/221354018x15446248389244","url":null,"abstract":"Mr Justice Francis ended his judgment in Great Ormond Street Hospital v Yates, Gard and Gard with the recommendation that 'mediation should be attempted in all cases such as this one'. Although this gave the impression that mediation would be unquestionably beneficial in the Gard case\u0000 and other 'medical futility' cases where the patient is incompetent, this paper contends that this is not as straightforward as it might at first appear. With the general absence of a middle ground and with the law in such cases frequently on doctors' side, mediation's potential for a satisfactory\u0000 resolution of medical futility conflicts is arguably limited.","PeriodicalId":91323,"journal":{"name":"Journal of medical law and ethics","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45301765","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-12-01DOI: 10.7590/221354018X15446248389208
K. Choong
{"title":"Guest Editorial","authors":"K. Choong","doi":"10.7590/221354018X15446248389208","DOIUrl":"https://doi.org/10.7590/221354018X15446248389208","url":null,"abstract":"","PeriodicalId":91323,"journal":{"name":"Journal of medical law and ethics","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45595086","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-08-01DOI: 10.7590/221354015X14319325750070
Angus H Ferguson
Medical confidentiality and privacy are often given a long pedigree as core issues in medical ethics that can be traced back to the Hippocratic Oath. However, it is only recently that focused historical work has begun to examine and analyse in greater detail how the boundaries of medical confidentiality and privacy have evolved within a variety of cultural contexts during the modern period. Such research illustrates the ways in which this process has been shaped by a range of issues, individuals, interest groups and events; and been influenced as much by pragmatic concerns as by theoretical arguments. This paper presents a case for the merits of promoting further historical work on these topics. It suggests that greater support for, and recognition of, historical research has a number of potential benefits. These include providing meaningful context to current interdisciplinary discussions of the collection and use of patient information; improving knowledge and understanding of the foundations on which current policy and practice are built; and promoting public engagement and understanding of the evolution of medical confidentiality and privacy as complex public interest issues.
{"title":"The Role of History in Debates Regarding the Boundaries of Medical Confidentiality and Privacy.","authors":"Angus H Ferguson","doi":"10.7590/221354015X14319325750070","DOIUrl":"10.7590/221354015X14319325750070","url":null,"abstract":"<p><p>Medical confidentiality and privacy are often given a long pedigree as core issues in medical ethics that can be traced back to the Hippocratic Oath. However, it is only recently that focused historical work has begun to examine and analyse in greater detail how the boundaries of medical confidentiality and privacy have evolved within a variety of cultural contexts during the modern period. Such research illustrates the ways in which this process has been shaped by a range of issues, individuals, interest groups and events; and been influenced as much by pragmatic concerns as by theoretical arguments. This paper presents a case for the merits of promoting further historical work on these topics. It suggests that greater support for, and recognition of, historical research has a number of potential benefits. These include providing meaningful context to current interdisciplinary discussions of the collection and use of patient information; improving knowledge and understanding of the foundations on which current policy and practice are built; and promoting public engagement and understanding of the evolution of medical confidentiality and privacy as complex public interest issues.</p>","PeriodicalId":91323,"journal":{"name":"Journal of medical law and ethics","volume":"3 1-2 1","pages":"65-81"},"PeriodicalIF":0.0,"publicationDate":"2015-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.7590/221354015X14319325750070","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71369977","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2014-04-01DOI: 10.1093/HE/9780198702269.003.0004
J. Herring
This chapter examines the legal and ethical aspects of treating a patient without consent. It considers the meaning of ‘consent’ and the position of patients who lack the capacity to consent. For children who lack capacity, consent involves a delicate balance between the rights of the children and those of their parents. For adults lacking capacity, the Mental Capacity Act 2005 has emphasized the ‘best interests’ test, but has largely left open the question of how a person’s best interests are to be ascertained. The chapter also considers what weight should be attached to advance decisions (sometimes called living wills).
{"title":"4. Consent to Treatment","authors":"J. Herring","doi":"10.1093/HE/9780198702269.003.0004","DOIUrl":"https://doi.org/10.1093/HE/9780198702269.003.0004","url":null,"abstract":"This chapter examines the legal and ethical aspects of treating a patient without consent. It considers the meaning of ‘consent’ and the position of patients who lack the capacity to consent. For children who lack capacity, consent involves a delicate balance between the rights of the children and those of their parents. For adults lacking capacity, the Mental Capacity Act 2005 has emphasized the ‘best interests’ test, but has largely left open the question of how a person’s best interests are to be ascertained. The chapter also considers what weight should be attached to advance decisions (sometimes called living wills).","PeriodicalId":91323,"journal":{"name":"Journal of medical law and ethics","volume":"17 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2014-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86500348","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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