知情同意的适者生存伦理。

C. Fisher
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引用次数: 32

摘要

多年来,法律倡导者和社会政策制定者在精神残疾者权利方面的取向发生了很大变化。从历史上看,已知有精神障碍的成年人被认为是无能的,并且被限制了自己做决定的机会。(1)对被收容者和残疾者权利的漠视导致了虐待行为,例如在威洛布鲁克州立学校发生的臭名昭著的案件,生物医学研究人员在被认定为"精神缺陷"的儿童不知情的情况下,在其父母令人怀疑的自愿同意下,使其感染了病毒性肝炎。(2)在威洛布鲁克案之后,为智障人士辩护的人为有决策障碍的人取得了重大的法律利益。这一运动导致制定了一些政策,要求将那些未来在很大程度上被置于严格限制的机构生活中的个人去机构化,制定了中间护理设施的规定,作出了保证智力迟钝的人自己做决定的权利的法院裁决,并最终得到法院的承认,即精神障碍的诊断并不是假定个人没有能力做决定。(3)尽管取得了这些成果,但尊重精神障碍患者作为道德共同体自主成员的权利的义务与确保不知情或不称职的决定不会危及他们的福利的需要之间的平衡,仍然是法律倡导者、从业人员和家庭成员面临的一个持续的伦理挑战。(4)本文认为,成人精神障碍患者的知情同意政策需要反映一种关系方法,即根据患者特征与同意环境之间的“拟合度”重新定义同意脆弱性。与所有人一样,患有精神障碍的成年人在互惠和依赖的关系中与其他人联系在一起。(5)将同意障碍概念化为个人与同意上下文之间关系的产物,使伦理调查不再只关注患者或研究参与者的精神疾病。相反,它关注的是那些正在创造或加剧同意脆弱性的同意设置方面,并考虑如何修改设置,以产生一个最能反映和保护患者/参与者的希望、价值观、关注和福利的同意过程。(6)从关系的角度来看,道德上负责任的知情同意实践需要的不仅仅是评估患者/参与者是否理解寻求同意的程序的性质、风险和益处,而是对同意上下文本身进行重新配置。这种重新配置包括补救努力,以加强对同意的理解,并努力在同意持份者之间就其价值观和关注点达成相互理解。(7)作为法律和专业标准的一部分,现代知情同意原则往往是建立在对自主权的有限定义之上的,这种定义仅限于尊重个人的自治权和隐私权。(8)然而,正如James Childress教授所指出的,自治的理想必须与自治选择的条件区分开来。(9)在这个框架内,自治不需要被概念化为孤立的或孤立的,(10)而是作为与他人联系的一种表达。从这种关系的角度来看,对自主权的尊重要求从业者和研究者尽一切努力在个人和同意环境之间创造一种合适度,从而最大限度地为个人提供知情、理性和自愿的决定。…
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A goodness-of-fit ethic for informed consent.
INTRODUCTION The orientation of legal advocates and social policy makers regarding the rights of the mentally infirm has shifted considerably over the years. Historically, adults with known mental disorders were presumed incompetent and restricted from opportunities to make decisions for themselves. (1) Disregard for the rights of institutionalized and impaired persons resulted in abuses, such as the infamous case at the Willowbrook State School, where biomedical researchers infected children identified as "mentally defective" with viral hepatitis without their knowledge, and with the questionable voluntary consent of their parents. (2) In the wake of Willowbrook, advocates for people with mental retardation have made significant legal gains for individuals with decisional impairments. This movement led to including policies requiring the deinstitutionalization of individuals whose futures had largely been relegated to severely restricted institutional living, regulations for intermediate care facilities, court decisions guaranteeing the right of persons with mental retardation to make their own decisions, and ultimately, recognition by the courts that a diagnosis of a mental disorder is not a presumption that the individual is incompetent to make decisions. (3) Despite these gains, balancing the obligation to respect the rights of those with mental impairments to be treated as autonomous members of the moral community with the need to ensure that ill-informed or incompetent decisions will not jeopardize their welfare remains an ongoing ethical challenge for legal advocates, practitioners, and family members. (4) This Essay argues that informed consent policies for adults with mental disorders need to reflect a relational approach that re-conceptualizes consent vulnerability in terms of a "goodness-of-fit" between patient characteristics and the consent context. I. CONSENT VULNERABILITY AS A RELATIONAL CONSTRUCT Adults with mental disorders, like all people, are linked to others in relationships of reciprocity and dependency. (5) Conceptualizing consent impairments as a product of the relationship between the person and the consent context shifts ethical inquiry away from an exclusive focus on the patient's or research participant's mental infirmities. Instead, it focuses on those aspects of the consent setting that are creating or exacerbating consent vulnerability, and considers how the setting can be modified to produce a consent process that best reflects and protects the patient's/participant's hopes, values, concerns, and welfare. (6) From a relational perspective, morally responsible informed consent practices require more than simply evaluating whether a patient/participant understands the nature, risks, and benefits of procedures for which consent is sought, toward a reconfiguration of the consent context itself. Such reconfigurations involve remedial efforts to enhance consent comprehension coupled with efforts to attain mutual understandings among consent stakeholders regarding their values and concerns. (7) Embedded in law and professional standards, the modern doctrine of informed consent is too often grounded in a limited definition of autonomy that is restricted to respect for an individual's right to self-governance and privacy. (8) However, as Professor James Childress has pointed out, the ideal of autonomy must be distinguished from the conditions for autonomous choice. (9) Within this framework autonomy need not be conceptualized as isolated or isolating, (10) but as an expression of connectedness to others. From this relational perspective, respect for autonomy requires that practitioners and investigators make every attempt to create a goodness-of-fit between the person and the consent context that maximizes opportunities for the individual to provide informed, rational, and voluntary decisions. …
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