HPSA and the Anti-Kickback safe harbor: are we sending doctors to the right neighborhoods?

This article explores the problems within a niche area of health law, the Health Professional Shortage Area (HPSA) safe harbor of the Anti-Kickback Statute. The author advocates for its removal by discussing how the HPSA designation is being used incorrectly to curb fraudulent behavior and how the current provision serves few hospitals. The author concludes by suggesting innovative solutions to remedy the problems with the current HPSA designation system.     

Access to advanced therapy medicinal products in the EU: where do we stand?

The European Union has a public health strategy and will generally ensure in all its policies and activities a "high level of human health protection". The new Regulation (EC) n 1394/2007 on advanced therapy medicinal products (ATMP), stems from this global policy and aims to harmonise access to the ATMP market. A real will for the harmonisation is clearly expressed in legal texts and enforced in the implementable procedures and requirements. However, several barriers remain. On the one hand, the scope of the ATMP Regulation is limited. On the other hand, Member States benefit from a wide margin of action.     

Applying the Responsibility to Protect to the ‘Arab Spring’

The doctrine of the responsibility to protect, since its inception in the ICISS report of 2001, has been the subject of considerable discussion. Arguably its most publicised component is the principle that the international community has the responsibility to protect civilian populations against severe suffering where the relevant national authorities are unable or unwilling to do so. Consequently, the main focus of discourse upon the responsibility to protect has centred on its impact upon the approach of the international community to intervention in respect of situations posing considerable humanitarian crises. The events of the Arab Spring, in which full blown conflict in some states gave rise to serious human suffering, provided a real opportunity for the international community to evaluate the role of the responsibility to protect in decision-making over responding to such instances, and potentially to develop it into a practical and meaningfully implementable concept. However, due to political flaws inherent in the doctrine, and its arguably overstated significance, the doctrine at best played a minimal role in guiding the international response to developments in the Arab World. Nonetheless, responses to the Arab Spring do allow certain conclusions to be drawn in respect of the future relevance of the doctrine.     

Listen to the Judge or Listen to the Facts?——On the exclusionary rule

证据是认识的基础、证明的根据、检验的标准、思想的指南.什么能当此重任?惟有事实.证据是事实,事实不存在非法、合法的问题.事实是客观的,既不受法律调整,也不受法律制约,因而证据也没有合法性.证据不能排除.排除证据的实质是法官睁着眼睛不认事实,排除证据的法官把自己和事实的位置摆错了,这是一项根本性的错误.非法获取人证是司法警察通过刑讯逼供和指名问供这样两重罪行实现的,因而它不是程序,而是程序中的实体.     

From the Airport to the Surgery to the Courtroom – Private International Law and Medical Tourism

When people wish to take legal action in relation to damage suffered due to medical procedures carried out overseas, they are faced with complex issues. First, in which country can they sue? Second, which country’s laws will govern the dispute? And third, where can a potential favourable judgment be enforced?

This article examines these private international law issues in the context of medical tourism. In doing so, particular emphasis is placed on investigating the private international law issues that would arise if an Australian citizen wanted to take action against a foreign provider of medical services, in relation to services rendered overseas.     

The Duty to Protect the Victim – Or the Duty to Suffer Punishment?

This paper addresses The Ends of Harm by Victor Tadros. In it, I attempted to explore some of the implications of Tadros’s theory of punishment, particularly those following from the uneasy relationship between punishment of the offender (D) and D’s duty to protect the victim (V) from future harm. Among my concerns were: the apparent underinclusiveness of Tadros’s theory of punishment; the vague and unpredictable scope of D’s liabilities; the taking away by the state of V’s right to be protected; and the lack of inherent limitations on the appropriate forms and amounts of punishment. I also questioned the true meaning of the duty incurred by D as a result of D’s wrongdoing and suggested that protection of Vs from future harm may not be as essential to Tadros’s justification of punishment as he has argued.     

Can we handle the truth? Legal fictions in the determination of death

Advances in life-saving technologies in the past few decades have challenged our traditional understandings of death. People can be maintained on life-support even after permanently losing the ability to breathe spontaneously and remaining unconscious and unable to interact meaningfully with others. In part because this group of people could help fulfill the growing need for organ donation, there has been a great deal of pressure on the way we determine death. The determination of death has been modified from the old way of understanding death as occurring when a person stops breathing, her heart stops beating, and she is cold to the touch. Today, physicians determine death by relying on a diagnosis of total brain failure or by waiting a short while after circulation stops. Evidence has emerged that the conceptual bases for these approaches to determining death are fundamentally flawed and depart substantially from our biological and common-sense understandings of death. We argue that the current approach to determining death consists of two different types of unacknowledged legal fictions. These legal fictions were developed for practices that are largely ethically legitimate but need to be reconciled with the law. However, the considerable debate over the determination of death in the medical and scientific literature has not informed the public of the fact that our current determinations of death do not adequately establish that a person has died. It seems unlikely that this information can remain hidden for long. Given the instability of the status quo and the difficulty of making the substantial legal changes required by complete transparency, we argue for a second-best policy solution of acknowledging the legal fictions involved in determining death. This move in the direction of greater transparency may someday result in allowing us to face squarely these issues and effect the legal changes necessary to permit ethically appropriate vital organ transplantation. Finally, this paper also provides the beginnings of a taxonomy of legal fictions, concluding that a more systematic theoretical treatment of legal fictions is warranted to understand their advantages and disadvantages across a variety of legal domains.     

Dosage of treatment to sexual offenders: are we overprescribing?

A sample of 337 offenders who received treatment in a variety of sex offender treatment programs in the Ontario region of Correctional Service Canada between 1993 and 1998 were divided based on the highest intensity sex offender programming that they received (low, moderate, and high). The three groups were compared with reference to a variety of actuarial risk assessment measures, criminogenic factors, and the number and type of treatment programs completed. It was hypothesized that the high-intensity group would have more criminogenic risk factors, higher actuarial scores, and participate in more treatment programs than both the moderate- and low-intensity groups. The results indicate that in general, the hypotheses were supported. Nonetheless, the results suggest that the low-intensity group may be receiving too much sex offender-specific treatment.     

Domestic violence among immigrants from India: What we need to know — and what we should do

Little research has been reported on domestic violence among Indian immigrant families in the United States. While one national survey suggests that this is not a major problem, several smaller scale studies that focus specifically on South Asian immigrants suggest there is a substantial hidden problem warranting attention. In order to assist future research, this paper presents an integrated theoretical model to explain domestic violence in Indian immigrant communities. The model draws on feminist theory, family violence research, acculturation theory and victimological and crime opportunity theories. The model also provides a framework for thinking about possible intervention strategies. Those likely to provide more immediate benefits are discussed.     

Confessing their Crime: Factors Influencing the Offender’s Decision to Confess to the Police

Confessions are crucial to successful police investigations but scholars have significantly overlooked factors that contribute to an offender’s decision to confess a crime. This study aims to examine a large array of factors that play a role in the offender’s decision to confess a crime to the police and potential interaction effect among them. A total of 221 adult males incarcerated in a federal Canadian penitentiary were recruited. Correctional files, police reports, and offenders’ self‐reported data were collected and analyzed. Controlling for sociodemographic, criminological, and contextual factors, a series of logistic regression analyses were conducted. Findings highlighted the predominant role of police evidence over and above other factors analyzed. Furthermore, sociodemographic and criminological factors played a more important role in the offender’s decision to confess when police evidence was weak. Findings are discussed in light of the current scientific literature on the determinants of offenders’ decision to confess their crime.