Medical Samaritans: is there a duty to treat?

This article argues that doctors and other health care professionals should be obliged to provide emergency treatment to those in immediate and nearby need regardless of the absence of any prior professional relationship between the parties. It concludes that the common law should accordingly recognize a specific duty of 'medical rescue'. It examines some of the conventional objections to affirmative duties, finding them unconvincing in this particular context. It draws on two recent appellate decisions, one Australian and the other English, for support, as well as on more general arguments concerning moral sentiment, professional ethics, public expectation, and respect for human rights.     

A pretty pass: when is there a right to die?

This paper, the 2002 Fison Memorial Lecture, reflects on the state of the law on the right to die, following the cases of Mrs Pretty and Ms B. Particular attention is drawn to a number of developments in the European Court of Human Rights.     

What is the Theory Legal Argumentation For?

The paper aims to present the legal theories of legal argumentation constructed in the last century, organised into two groups: the precursors (Viehweg, Perelman and Toulmin) and the authors of the standard theory (MacCormick and Alexy). Then, some criticisms about all these conceptions are presented. And finally, an outline of a theory of legal argumentation is made, capable of overcoming some of the previous criticisms. The fundamental idea for this is to build a very abstract concept of argumentation that could then allow various interpretations or conceptions of legal argumentation. From here, one would be in a position to find an answer to the three main argumentative questions raised by legal practice: how to analyse an argument, how to evaluate it, how to argue.

     

A duty to protect? Legal consciousness among military officers in armed conflict

Military personnel participating in international operations are often deployed to areas where armed groups inflict violence on civilians. In such instances, soldiers must decide how to respond, effectively becoming executors of the law. This article draws on legal consciousness theory and 33 interviews with Norwegian military officers to explore what soldiers perceive as the ‘law’ and how they make sense of legality in determining what constitutes a just response. It finds that officers are conscious of three sources of legality – a mission mandate, a senior commanding officer, and a personal obligation to humanity – which they stand before, engage with, and struggle against, respectively. In actively drawing on these ideas about justice, the officers create and reproduce order in violent contexts. This article adds to theoretical debates about the different ways in which people invoke the law in difficult circumstances. It contributes empirically to an understanding of why authorized militaries behave inconsistently when encountering violence against civilians.     

Terrorism and mental illness: is there a relationship?

This article examines the connections between mental illness and terrorism. Most social scientists have discounted a causal relationship between mental illness and terrorism. This is not necessarily always the case within terrorism studies, the media, or political circles where the psychology of terrorism is often expressed in the language of mentalisms, and theories of pathologisation continue to exist. This article reaffirms the view that apart from certain pathological cases, there is no causal connection between an individual's mental disorder and engagement in terrorist activity. The individual terrorist's motivations can be explained by other factors, including behavioural psychology. However, there may be a connection between an individual engaging in terrorist activity and developing a mental disorder[s]. Certain stressors that occur because of terrorist activity may result in psychological disturbance in terrorist individuals. These factors may partially explain terrorist group instability and should be taken into account when detaining and interrogating terrorist suspects.     

Surrogacy: is there a case for legal prohibition?

Surrogacy arrangements are a complex and challenging issue for legal regulation. On the one hand, if we wish to promote personal autonomy and enable the infertile to experience parenthood, there is a case for allowing these arrangements to proceed. However, objections to legal sanctioning of surrogacy include concerns for the surrogate and the child born through the surrogacy arrangement. Legally sanctioning surrogacy may also adversely affect social conceptions of women's roles or may be considered a form of commodifying women's reproductive capacities. This article examines these challenges to allowing surrogacy, but concludes that surrogacy should not be legally prohibited.     

Is there only One Correct Legal Answer to a Question of Fact? Three Talmudic Answers to a Jurisprudential Dilemma

This article focuses on questions of pure fact‐of‐the‐matter and asks whether two omniscient judges (or jurists or scholars) may disagree over the legal answer to a straightforward question of a matter of fact. There are approaches to legal theory among some western and Jewish philosophers of law whereby at least superficially it is possible that two or more contradictory legal statements regarding a given reality can be equally correct. The article provides a critical analysis of three different models derived from the Jewish legal literature, and reviews the contributions of Jewish sources to the understanding of the phenomenon of disagreements concerning matters of fact.     

The pregnant woman and the good Samaritan: can a woman have a duty to undergo a caesarean section?

Although a pregnant woman can now refuse any medical treatment needed by the fetus, the Court of Appeal has acknowledged that ethical dilemmas remain, adverting to the inappropriateness of legal compulsion of presumed moral duties in this context. This leaves the impression of an uncomfortable split between the ethics and the law. The notion of a pregnant woman refusing medical treatment needed by the fetus is troubling and it helps little simply to assert that she has a legal right to do so. At the same time, the idea that a pregnant woman fails in her moral duty unless she accepts any recommended treatment or surgery--however great the burden--is also not without difficulty. This article seeks to find a way between these two somewhat polarized positions by arguing that, instead of being a question primarily about whether legally to enforce moral obligations, the 'maternal-fetal conflict' begins with previously unrecognized difficulties in determining when a woman's prima facie moral rights invoked in the treatment context should 'give way' to the interests of the fetus. This difficulty is mirrored within the law. Thus, how can we tell when a pregnant woman has the moral or legal duty to submit to a caesarean section? Seen in this way, the conflict is a problem which lies at the interface between moral and legal rights and duties, showing that there are important conceptual links between the ethics and the law. Against this background, this article explores the limits of a pregnant woman's right to bodily integrity by focusing upon the idea of her moral duty to aid the fetus through her body. Here we find difficulties in determining the existence and extent of this somewhat extraordinary duty. Such a duty is contrasted with both negative and positive duties toward others in the course of 'general conduct.' Attention to the social context of pregnancy and the refusal of treatment within this is also instructive. Overall, the purpose is to foster understanding and acceptance of the current legal position.     

When doctors divulge: is there a "threat from within" to psychiatric confidentiality?

Psychiatrists, as a profession, have always asserted the central importance of confidentiality. The American Psychiatric Association (APA), in its recently released "Guidelines on Confidentiality," reaffirms this position. In an age of progressive erosion of the traditional psychiatrist-patient confidentiality, the threat to confidentiality is invariably perceived as exogenous, emanating from external sources such as the legal system, third-party payers, and peer review organizations. In rare instances, there appears to be a threat from within, when the psychiatrist (or nonpsychiatrist physician dealing with a psychiatric patient) deliberately chooses to divulge the patient's confidential communications in the absence of any clearcut legal requirement to do so (and against the express wishes of the patient). Four case examples of these unusual breaches of confidentiality are presented. The author concludes that although significant assaults on patient confidentiality are occurring from without, it is quite rare for such violations to come from within the profession itself.     

Hypernatremia and subdural hematoma in the pediatric age group: is there a causal relationship?

Several researchers in the 1950's proposed that hypernatremia causes water to leave brain cells, shrinking the brain, thus tearing the bridging veins and resulting in subdural hematomas. Although the old literature suggests mechanisms linking the two in a cause and effect relationship, there is controversy as to whether hypernatremia leads to subdural bleeding or whether the reverse is true. This issue is important for forensic pathologists who must distinguish natural disease from trauma. An etiologic link between hypernatremia and subdural hematomas was suggested recently, and was proposed originally before Kempe's 1962 paper "The Battered Child Syndrome" which widely disseminated the concepts of child physical abuse, and of subdural bleeding resulting from non-accidental injury. Our study is a multifaceted investigation of infants which includes: a literature review, retrospective chart reviews of both living and deceased hypernatremic infants, a retrospective review of infants hospitalized with subdural hematoma, and a prospective collection of head injured, hypernatremic children. We conclude that hypernatremia, if present in association with subdural hemorrhage, is most likely secondary to intracranial pathology, and that hypernatremia often develops in critically ill infants suffering from a variety of medical conditions.     

“Ought to” as a Chinese Legal Performative?

The article discusses the legal performatives as used in Chinese legislative language consisting of bixu (shall), yingdang (should or ought to), keyi (may) and bude (shall not) with the illocutionary force of imposing obligations, conferring rights and permission, and prohibition (bude). It postulates that the use of bixu and yingdang is traceable to the influence of the ancient Chinese cultural and legal philosophy of li and fa. It argues that Chinese language is a carrier of messages with built-in Chinese cultural codes and to be able to understand Chinese law, the wider cultural and linguistic contexts must be considered. It also proposes that speech act theory needs to address the interlingual and intercultural variables in the construction of meaning.