The legal status of clinical and ethics policies, codes, and guidelines in medical practice and research

This article examines the legal status of "soft law" in the fields of medicine and medical research. Many areas of clinical practice and research involve complex and rapidly changing issues for which the law provides no guidance. Instead, guidance for physicians and researchers comes from what has often been called "soft law"--non-legislative, non-regulatory sources, such as ethics policy statements, codes, and guidelines from professional or quasi-governmental bodies. This article traces the evolution of these "soft law" instruments: how they are created, how they are adopted within the professional community, and how they become accepted by the courts. It studies the relationship between soft law instruments and the courts. It includes an examination of the approaches to judicial analysis used by the courts in theory and in practice. The authors then examine the jurisprudence to see how courts will adopt professional norms as the legal standard of care in some circumstances and not others. They consider the legal concerns and ethical issues surrounding the weight attached to professional practices and norms in law. The authors demonstrate how practices and policies that guide professional conduct may ultimately bear weight as norms recognizable and enforceable within the legal sphere.     

Teaching medical ethics and law

The teaching of medical ethics is not yet characterised by recognised, standard requirements for formal qualifications, training and experience; this is not surprising as the field is still relatively young and maturing. Under the broad issue of the requirements for teaching medical ethics are numerous more specific questions, one of which concerns whether medical ethics can be taught in isolation from considerations of the law, and vice versa. Ethics and law are cognate, though distinguishable, disciplines. In a practical, professional enterprise such as medicine, they cannot and should not be taught as separate subjects. One way of introducing students to the links and tensions between medical ethics and law is to consider the history of law via its natural and positive traditions. This encourages understanding of how medical practice is placed within the contexts of ethics and law in the pluralist societies in which most students will practise. Four examples of topics from medical ethics teaching are described to support this claim. Australasian medical ethics teachers have paid less attention to the role of law in their curricula than their United Kingdom counterparts. Questions like the one addressed here will help inform future deliberations concerning minimal requirements for teaching medical ethics.     

Codes of medical ethics

With one of the oldest codes of ethics in history, the medical profession continues to arouse controversy. This author examines the fifth major revision of the American Medical Association's code of ethics, published in 1957. Within this revision are the basic premises in establishing a medical code of ethics. Subsequent ethical dilemmas, involving technology, for example, can still be applied to the 1957 fundamental code.     

Law and ethics of deep brain stimulation

Deep brain stimulation (DBS) is a non-destructive, adjustable, and mainly reversible method of continuously giving electrical impulses into a small area of the brain via implanted electrodes. It has been established as a standard form of treatment for specific cases of Parkinson's disease, essential tremor and dystonia. It is currently being evaluated for several mental disorders, dementia and even alcoholism. In spite of its growing practical importance, the legal issues have so far undergone almost no analysis. The article outlines both the essential legal questions of DBS from the perspective of German Law as well as major issues of the current ethical debate, and the correlation of both fields.     

Law and ethics for the bioeconomy and beyond

The convergence of biological, technological and economic realms of life has fostered the development of the bioeconomy as a new feature of contemporary society. As the meaning of life and the human body is redefined in the context of the bioeconomy, new challenges have emerged for ethics and law In the face of these challenges, it is imperative that the currency of regulatory frameworks is maintained through the processes of regular review and update. The National Health and Medical Research Council has recently released the new National Statement on Ethical Conduct in Human Research to provide guidance for health research in Australia. The new National Statement will play an important part in supporting innovation and the development of the knowledge economy.     

Economic and legal analysis of medical ethics

In the last decade, the antityrust authorities have stricken one after another of the ethical rules of professional societies. Underlying this pokicy is the widelyaccepted notion that ethics are simply devices designed by the professions to limit competition and thereby to benefit their pecuniary interests. The antitrust assault does not consider the longstanding, nearly universal consumer support for controls on the activities of certain professions. In this paper, the narrow view ofcompetition adopted by the courts is assailed. Focusing on the case ofrestrictions on interactions between physicians and other nonmedical health care providers, some procompetitive effects of medical ethics are analyzed. Generally, professional ethics can only change the form of competition but not eliminate it. A proper legal policy requires recognition of the consumer concern with the form of competition and therefore requires a careful balancing of the beneficial competitive effects against any attendant limits on intraprofessional competition.     

Law,Morality, and the Existence of Human Rights*

In the debate between positivism and non‐positivism the argument from relativism plays a pivotal role. The argument from relativism, as put forward, for instance, by Hans Kelsen, says, first, that a necessary connection between law and morality presupposes the existence of absolute, objective, or necessary moral elements, and, second, that no such absolute, objective, or necessary moral elements exist. My reply to this is that absolute, objective, or necessary moral elements do exist, for human rights exist, and human rights exist because they are justifiable.     

What is medical ethics consultation?

What happens when the field of ethics consultation meets the hermeneutics of suspicion.     

Privatization in Poland: Politics,Society, and the Law*

The paper presents the beginning and the initial results of the process of privatization in Poland. Starting from the summer of 1990 it examines the political debate on the Privatization Act and corresponding social reaction. It shows how the society answers such important questions as: who, and on what principles, is to take over the hitherto state-owned property? The next question is on the content of the “social contract on privatization”: the legal starting point and the first empirical results. It appears that the most visible social effect was the growth in the inequalities between workers and the elites of the society. The role of workers in the process of transformation is also of special interest. Finally, the paper examines the role of privatization law, which on the one hand presents a compromise between the ruling class and the society and on the other hand has been replaced by current privatization policy.