历史·范式·结构:犯罪学中的风险开示

在20世纪末,风险已成为占据主要支配力的问题处理方式。对于犯罪学来说,关于风险的争论已经贯穿在研究的全部范畴内。犯罪学中的风险理论经历了从隐性到显性的知识发展。在犯罪控制范式转变中,风险的规制、维控与治理与犯罪的预防、控制与治理分别对应而形成了以回抗、维控、化解风险压力为导向的控制结构。同时,作为犯罪控制结构要素的控制主体、控制措施与控制客体的任一环节的自反性都将使犯罪控制的运行超出设计初衷而出现风险性。犯罪学中的风险理论是犯罪学与风险学科的交叉研究理论,也存在由于风险的不确定性在犯罪治理中的适用所引发的一系列争议性问题。由此,风险议题在解决我国司法实践难题时显得尤为重要。     

The right not to know and coronary angiography: is the common law of Australia consistent with patients' wishes?

In "The Right Not to Know: Patient Autonomy or Medical Paternalism?" (2000) 7 JLM 286 Judy Gutman qualitatively examined the direction of the law relating to the duty of medical practitioners to disclose information to their patients about risks associated with medical treatment. Prompted by theoretical issues raised in that article, a quantitative study was performed. The study focused on the wishes of patients referred for coronary angiography regarding information about the risks inherent in that procedure. The results of the study contribute to the ongoing academic discussion about risk disclosure and consent to medical treatment and demonstrate a need for further empirical research in the area. The study also highlights the desirability of clinical medical practice conforming to the tenets of the common law and vice versa.     

告知后同意规则的法律构造

在具有侵袭性的医疗行为中,医师负有告知义务,以患者得以了解的语言,告知病人病情、治疗方案、各方案可能的的风险,以及不治疗的后果等。告知义务的履行应采取理性患者的标准。告知义务也有例外。医师违反告知后同意义务并非直接侵害了患者的健康权,而是侵害了患者的自我决定权或自我决定法益,它将可能进一步引起对患者健康权的侵害,造成患者人身损害。     

Cosmetic surgery in Australia: a risky business?

Cosmetic surgery is increasing in popularity in Australia and New Zealand, as it is across other Western countries. However, there is no systematic mechanism for gathering data about cosmetic surgery, nor about the outcomes of that surgery. This column argues that the business of cosmetic surgery in Australia has questionable marketing standards, is conducted with little scrutiny or accountability and offers patients imperfect knowledge about cosmetic procedures. It also argues that while medical practitioners debate among themselves over who should carry out cosmetic procedures, little attention has been paid to questionable advertising in the industry and even less to highlighting the real risks of undergoing cosmetic surgery. While consumers are led to believe that cosmetic surgery is accessible, affordable and safe, they are sheltered from the reality of invasive and risky surgery and from the ability to clearly discern that all cosmetic procedures carry risk. While doctors continue to undertake advertising and engage in a territorial war, they fail to address the really important issues in cosmetic surgery. These are: providing real evidence about what happens in the industry, developing stringent regulations under which the industry should operate and ensuring that all patients considering cosmetic surgery are fully informed as to the risks of that surgery.     

Risk,response, and mental health policy: learning from the experience of the United Kingdom

Policy makers in the United States and the United Kingdom recognize that mentally disordered offenders present special challenges to law enforcement, mental health, and social service systems, as well as the community. Although various policy initiatives have advanced over the past twenty years to improve the management of mentally disordered offenders, mental health policy has chronically failed in both countries. Because safety concerns have emerged as the mental health system has been "deinstitutionalized," debate is growing about whether the community-care approach works-for the community. This study argues that mental health policy fails because policy makers focus on the wrong risks and design policies that manage these risks in ways that increase the possibility of adverse clinical and economic outcomes. The argument made here uses the case of persons with severe mental illness in the United Kingdom as an example of the complex relationship between risk and policy making in democratic governance. Emphasis is on the nature of risk in mental health policy and how government responds to policy and political risks. Mental health policy in Britain is then analyzed in terms of its response to and management of risks. Mental health policy has historically mismanaged the risk issue in the United Kingdom and as such has set in motion the growing community-care backlash. The path to a better outcome lies in the responsible management of the right risks. Lessons from the United Kingdom experience can be usefully applied to mental health issues in many industrial democracies.     

Integrating risk,the Good Lives Model and recovery for mentally disordered sexual offenders

Abstract

Personality disordered and mentally disordered sexual offenders (MDSOs) with complex diagnoses such as schizophrenia, developmental disorders and mood disorders face challenges of restoring their mental health, living more safely with personality- and offence-related risks, while addressing concerns about their capacity to reintegrate into society; this has been termed “secure recovery”. This paper reviews the literature on recovery, demonstrating its commonality with the Good Lives Model (GLM) as applied to MDSOs' offending treatment. GLM appears to provide a better fit with the recovery needs of MDSOs than the Risk–Need–Responsivity model because it emphasises approach goals, enhanced responsivity and skills acquisition. Recovery needs to integrate coping with mental disorders with risk management and a healthy, future lifestyle. Both secure recovery and GLM support the need for client–clinician collaboration, promoting self-determination and a shared narrative about coping with enduring risk and the hope of sustained well-being.     

Nanotechnology: The Challenge of Regulating Known Unknowns

Media reports of the health hazards posed by nano-sized particles (NSPs) have turned a white hot spotlight on the risks of nanotechnology. Worried about the risks posed to workers producing nano-materials, the Washington Post has labeled nanotechnology a "seat-of-the-pants occupational health experiment." This article examines our emerging knowledge base about the hazards of two types of exposure: inhalation of NSPs and topical application of products containing NSPs. It argues that a clear-eyed evaluation of the benefits and risks of nanotechnology is made extremely difficult by the marriage of a complex science with a venture capitalist-like hype. It then suggests that, absent additional statutory authority, governmental regulators cannot readily address the risks posed by these products. This regulatory inaction leaves a significant role for the private insurance market, a role that regulators should support in tangible ways outlined in the article.     

Dirt Is a Pollutant! Water Is,Too … How to Create Clarity in Environmental Insurance Coverage and Lower the Cost of Environmental Risks

General confusion about what is or could be an excluded-pollutant in property and liability insurance policies has created a situation where insurance agents and brokers cannot accurately advise their customers on how to insure environmental risks. Pollution exclusions are intended to exclude pollution-related claims. Over one hundred different environmental insurances have been designed to fill the coverage gaps created by pollution exclusions. By ignoring the fundamental purpose of pollution exclusions and the broad range of environmental insurance policies that are available, many environmental damage claims are needlessly uninsured today.     

Abortion, information & the law: what every doctor needs to know

1. Before commencing any treatment, doctors must inform patients of all material risks of the treatment (Rogers v. Whitaker, 1992). 2. It is not up to the professional judgment of doctors to decide how much information to give to patients (Rogers v. Whitaker, 1992). 3. The same duty to inform applies to abortion ("Ellen's Case," 1998). 4. GPs and counsellors who refer for abortion also have a legal duty to inform women of risks, because everyone who gives specialized or professional advice may be sued for negligence if that advice is given without due care (Evatt's Care, 1969). 5. Doctors have been inadequately informed on the medical risks of abortion, by writers seeking to present abortion as a risk-free procedure. 6. Abortion may increase the risk of cancer. 7. Abortion carries risks of injury and illness. 8. Abortion caries risks of future reproduction. 9. Abortion may have adverse psychological and psychiatric sequelae. In some women, these sequelae are severe and intractable, and may occur irrespective of a woman's personal attitudes towards abortion (Melinda Tankard Reist, Giving Sorrow Words: Women's Stories of Grief After Abortion, Sydney, Duffy & Snellgrove, 2000). 10. Women still die in Australia from abortion. 11. It has not been proved that pregnancy and delivery are more dangerous than abortion. 12. The risks of mortality and morbidity in carrying a pregnancy to term are often exaggerated, in an effort to make abortion appear safer. 13. Doctors are not required to refer for abortion. On the other hand, doctors do have a duty to inform themselves of the professional competence of any practitioner to whom they refer any patient for any procedure. Doctors who are referring for abortion can avoid legal jeopardy by informing women fully of the risks, and by keeping very comprehensive records of the information they have given. Alternatively, doctors can avoid legal liability by declining to refer for abortion. There are compelling medical reasons for treating abortion as a social, non-therapeutic, potentially harmful procedure with which conscientious doctors would choose not to involve themselves.     

Nature Protection and the Introduction into the Environment of Genetically Modified Organisms: Risk Analysis in EC Multilevel Governance

Genetically modified organisms (GMOs) are usually introduced into the environment through experimental releases or extensive cultivation. The risks involved are controlled via both the authorization for deliberate release and the authorization for the placing on the market of a GMO. In these two steps, the core issues of legal protection are public health and the environment. GMO-free agriculture has been introduced as a third – economic – protected good. This has triggered coexistence measures keeping GM and non-GM agriculture separated. Given the fact that much has already been said about risks of GMOs to human health, this article will rather focus on the environmental dimension, and more precisely on aspects of nature protection. It will accordingly explore whether nature is adequately protected through the authorization for the release and the authorization for the market placement of GMOs. While these questions concern regimes aiming at preventing environmental damage, co-existence, if related to natural ecosystems (rather than to the protection of a variety of agriculture), raises the question of whether ecosystems can be considered as protectable goods even if no traditional damage is caused.     

Conceiving harm: disability discrimination in assisted reproductive technologies

Applying the Americans with Disabilities Act (ADA) to denials of treatment by assisted reproductive technology (ART) practitioners raises particularly challenging legal and ethical issues. On the one hand, the danger that physicians will inappropriately deny treatment to patients with disabilities is especially worrisome in the context of ARTs, given the widespread stigma associated with reproduction by individuals with disabilities. On the other hand, patients' disabilities may sometimes have potentially devastating implications for any child resulting from treatment, including the possibility that the child will be born with life-threatening or seriously debilitating impairments. Some physicians have strong ethical objections to helping patients become pregnant in the face of such risks. In this Article, Professor Coleman develops a framework for applying the ADA to disability-based denials of ARTs that addresses these competing considerations. In recognizing risks to the future child as a potential defense to a disability discrimination claim, Professor Coleman rejects the view of some commentators that such risks are relevant to reproductive decisions only if the child is likely to suffer so much that he or she would prefer not to exist. Instead, he proposes that, when a patient's disabilities create significant risks to the future child, the question should not be whether the child's life is likely to be so awful that nonexistence would be preferable, but how the risks and benefits of the requested treatment compare to those associated with other available reproductive and parenting options. Professor Coleman provides a theoretical justification for adopting this comparative framework, and examines how ADA precedents developed in other contexts should be applied to decisions about ARTs.     

Functioning and Effectiveness of Electronic Control Devices Such as the TASER® M‐ and X‐Series: A Review of the Current Literature

Abstract: Conducted electrical weapons (CEWs) such as the TASER^® M‐ and X‐series deliver short high‐voltage, low‐current energy pulses to temporarily paralyze a person by causing electrical interruption of the body’s normal energy pulses. Despite many scientific publications, which classify the health risks of an appropriate use of the TASER device as minor, there still is a continuous uncertainty about possible side effects with human application. Based on a literature search of the National Library of Medicine’s MEDLINE database’s PubMed system of current publications, the following article describes the mechanisms by which the device operates and discusses possible pathophysiological consequences. The majority of current human literature has not found evidence of clinical relevant pathophysiological effects during and after an exposure of professionally applied CEWs. However, to be able to exclude possible health risks, a medical checkup of people who have been exposed to CEWs is essential.     

Who is Diverted? Case Selection for Court‐Monitored Mental Health Treatment

Specialized courts raise questions about the decisions that bring some defendants into such courts and keep others out. Because of risks perceived in diverting mentally ill defendants, decisions to select defendants for mental health courts are especially interesting. I estimate a model of the decision to divert defendants into court‐monitored mental health treatment. I find that gender and age combine to disadvantage young male defendants and older female defendants. The findings point to the importance of structuring selection processes in the design of specialized courts. They shed light on the consequences of including treatment personnel in justice system decisions.     

Safety issues as exemplified by the activities of the Joint Commission on Accreditation of Healthcare Organizations: context for the safety and disclosure standards

The author, the General Counsel of the joint Commission on Accreditation of Healthcare Organizations, discusses the concerns that have been raised about the Commission's Patient Safety standards and Sentinel Event policy. Mr. Bressler understands the view that compliance with the Commission's standards and procedures (which are designed to help advance safety in our healthcare system) could, in particular cases and under certain circumstances, heighten litigation risks, but emphasizes the benefits attainable from systematic analysis of errors. Moreover, the article concludes that thoughtful lawyering by counsel for healthcare organizations can help minimize any risks, pending legislation establishing the needed certainty in the law.     

Community-based care for people with severe mental illness in Canada

The development of mental health services for people with severe mental illness has in many ways paralleled that in other countries, particularly the United States. As reliance on inpatient psychiatric care has been sharply reduced, a wide range of community supports have been developed. Several distinct institutional and legal features have contributed to shaping the nature of these community supports, which are described herein. At present, the result is a highly fragmented system of care. Key evidence-based practices, notably assertive community treatment, supported employment, and integrated treatment for concurrent severe mental illness and substance use disorder, achieve considerable integration at the clinical level, but remain relatively unavailable in most provinces. The policy of regionalization of services risks inhibiting the development of such practices, which require more centralized technical assistance and monitoring. An evolutionary approach of gradually introducing integrated, evidence-based programs may provide the most feasible strategy for improving the system.     

Widowhood-related mortality in Scania,Sweden during the 19th century

In this article, mortality risks are empirically examined in connection with spousal bereavement in four parishes in Scania, southern Sweden, during the 19th century using duration analysis. The data are longitudinal and the inhabitants have been followed literally from the cradle to the grave. To simultaneously catch transitory (shock) and persistent (long-term) effects of widowhood on mortality of the surviving spouse, the Cox semiparametric proportional hazards model has been applied with time spent in widowhood as a time-dependent multiple factor. Widowers in general were found to face higher relative mortality risks than widows and the effect of bereavement decreased through time. The estimated relative risks for males were dependent on socioeconomic status and widowers classified as landless faced high relative risks. Quantitatively, the magnitude of our estimates was large in comparison with similar studies made on contemporary data.     

Widowhood-related mortality in Scania,Sweden during the 19th century

In this article, mortality risks are empirically examined in connection with spousal bereavement in four parishes in Scania, southern Sweden, during the 19th century using duration analysis. The data are longitudinal and the inhabitants have been followed literally from the cradle to the grave. To simultaneously catch transitory (shock) and persistent (long-term) effects of widowhood on mortality of the surviving spouse, the Cox semiparametric proportional hazards model has been applied with time spent in widowhood as a time-dependent multiple factor. Widowers in general were found to face higher relative mortality risks than widows and the effect of bereavement decreased through time. The estimated relative risks for males were dependent on socioeconomic status and widowers classified as landless faced high relative risks. Quantitatively, the magnitude of our estimates was large in comparison with similar studies made on contemporary data.     

IT Facilitating Fraud

This paper has three complementary aims: to highlight the risks of IT fraud in the workplace and the implication for controls and future investigation; to show how emerging technologies such as the Internet and electronic commerce (e-commerce) have affected fraud risk; and to indicate some additional fraud risks which arise from the Euro-conversion and Y2K ('the millennium bug') compliance projects, both of which require heavy IT support. Information Technology (IT) fraud can be defined as: Where a financial loss or malicious damage has been sustained by an organisation, which has been facilitated by the use of computers in some way.     

Studying deterrence with active residential burglars

Research designed to test deterrence/rational choice theory has contributed much to the knowledge of sanction threats, and the extent to which they are used in individuals' decision-making processes. The accumulation of knowledge about such perceptions among active and incarcerated offenders has surfaced only in recent years. We identified and interviewed active residential burglars to examine how they take into consideration the perceptions of risks and rewards before committing a burglary. Employing a series of estimation techniques which have not yet been used to study this research question, we find that offenders are influenced by the perceptions of both risk and rewards, though the latter are a stronger predictor of the decision to engage in a residential burglary. Theoretical implications and directions for future research are discussed.     

Stay With or Leave the Abuser? The Effects of Domestic Violence Victim’s Decision on Attributions Made by Young Adults

While negative attributions are often made toward female victims of domestic violence, studies have not explored whether attributions shift contingent upon whether women stay with or leave abusive husbands. Further, no studies investigated whether negative attributions decrease if the participants receive information about the prevalence of domestic violence or the risks inherent in leaving an abuser. Therefore, two studies were designed that investigated attributions made by young adults when women either stay with or leave an abusive husband and whether educating the participants about prevalence of domestic violence and risks of leaving mitigate negative judgments. In both studies, young adults responded to surveys assessing attributions toward a female heterosexual victim of domestic violence. Results indicated that participants made more positive attributions about her personality characteristics and parenting ability if a woman left the relationship. Informing students beforehand about potential risks of leaving and personal experience with domestic violence did not erase this effect, but interactions mitigated some of the effects. Results suggest that educating young adults about risks of violence while useful, is not sufficient to change blaming attitudes. Educators may instead need to challenge the attribution process. Further research involving attributions toward gay and lesbian victims of domestic violence is suggested.