Operation of guardianship laws in the emergency ward

Enduring and workable legislative schemes typically include (a) a balanced approach to the rights and duties of all parties under their purview; and (b) consideration of all major consequences that may flow from the codification of underpinning doctrines. This column examines the 1999 amendments to the Guardianship and Administration Act 1986 (Vic) regulating patients' consent to medical treatment focusing on their application in modern emergency departments. The legislation needs to reconcile the human rights principle that humane and appropriate treatment is a fundamental right of all those who suffer from ill health and disease, with the principle that all patients (including those with impaired, but not totally absent, decisional capacity) have an absolute right to refuse life-saving treatment. Consent and refusal of treatment provisions should be based on the notion of reasonableness, including recognition that the mental and emotional states experienced by physically ill people may, in the short-term, adversely affect their decision-making capacity. Unless the consent legislation factors in the realities of modern emergency practice and resources, statutory thresholds for decisional competence, instead of affording protection, may result in much worse outcomes for vulnerable patients.     

Ethics of Disenfranchisement and Voting Rights in the U.S.:Convicted Felons,the Homeless,and Immigrants

This paper examines the contemporary ethical issues surrounding voting rights of three disenfranchised groups in the U.S.: convicted felons, the homeless, and immigrants. Even in modern countries like the U.S., voting and other forms of political participation are skewed toward the elite, those with higher incomes, those who are employed, and those with more education. Low voter turnout presents serious challenges to democratic responsiveness, or the ability of leaders to respond to the needs and demands of citizens. Hence, voting should be encouraged in accord with the common interest. An important conclusion is that allowing all citizens – irrespective of their status – to vote would give them a voice in the context of governance. This notion is also associated with distributive justice, a philosophical concept that concentrates on just outcomes and consequences.     

Medical and legal aspects of genital mutilation and circumcision. Part II: Male circumcision

In the last few years, male circumcision has become the subject of controversial discussion. On the one hand, medical and hygienic arguments, ideology, freedom of religion, cultural identity and social adequacy are claimed by those supporting male circumcision. On the other hand, the justification of this practice also has to be critically scrutinized just as the question whether the parents have the right to consent to the operation. Today, opinions range from those who claim that religion and culture alone justify the practice to those who consider circumcision of minors unable to give their consent as bodily injury subject to punishment. In contrast to female genital mutilation, most positions do not postulate that circumcision violates morality. If the person concerned is able to give his consent, freedom of religion may also justify circumcision after weighing its pros and cons as well as its risks and potential side effects.     

罗马法物权冲突及其解决机制探析

物权的冲突与协调是目前引起理论界普遍关注的一个问题。罗马法在物权的冲突与协调上有一些原初的规定 ,但欠缺系统和抽象。应重新对这些精辟但略显分散的规定进行体系化整理。整理分为两部分 ,一部分对罗马法物权冲突的类型和解决规则进行归纳 ;另一部分是对冲突的解决机制进行整理。通过整理 ,力求发现罗马法对现代物权冲突解决的启发意义。     

State secrets: access to information under the Human Reproductive Technology Act 1991 (WA)

Many Australian children have a biological father who gave his sperm so that the child's mother could conceive and raise them. Many of these children, and their parent(s), do not know who that biological father is. However, some want to know. The article examines the Western Australian law on access to information about the identity of parties in these arrangements. It is argued that there is an implied right to access identifying information where all parties consent to the exchange of information; that this right has been ignored in official and medical practice and opportunities for good record-keeping missed; and that the current law allows a parent to give consent to the exchange of identifying information on behalf of their child at any time after the child is conceived.     

Disclosing health information breaches of confidence,privacy and the notion of the "treating team"

The authors utilise cases collected during a randomised population survey to illustrate some of the legal and policy issues concerning routine transfers of information between treating practitioners. Their analysis suggests that implied consent for many routine uses of health information should not be assumed. An important part of consent to health information disclosure is the patients' ability to tailor its scope and content. This requires that they should be provided with additional information. Introducing the measures advised into the clinical setting would bring health information-gathering practices closer to compliance with the collection principles contained in Australian information privacy legislation.     

The legal ethics of pediatric research

Since the mid- to late 1990s, the scientific and medical research community has sought to increase its access to healthy children for research protocols that involve harm or a risk of harm. This move reverses longstanding policy within that community generally to exclude healthy children from such protocols on the grounds that the research as to them is non-therapeutic, that they are particularly vulnerable to research-related abuses, and that they are unable themselves to give informed consent to their participation. The research community's new posture has been supported by prominent pediatric bioethicists who have argued that unless healthy children are included as research subjects in harmful or risky research, the pediatric population will continue to suffer relative to the adult population in the extent to which it benefits from modern advances in science and medicine. In their view, it is possible for the research community to self-administer a rule that strikes a balance between protecting healthy children from research-related abuses and allowing their inclusion in cutting-edge pediatric research. In this scheme, parental consent is central to the research community's claims about child protection. This Article explores the flaws inherent in this ethics of pediatric research. Specifically, it challenges the view from ethics that the law permits parents to consent to their children's inclusion in harmful or risky research to the extent that related invasions would meet legal maltreatment standards. More broadly, it challenges the movement to increase access to healthy children for harmful and risky research on the ground that it risks two important regressions: First, in its willingness to risk harm to individual children in the interests of the group, it threatens the progress the law has made in its development of the concept of the child as an individual worthy of respect in his or her own right, a concept that imagines parents as fiduciaries and that includes strong protections against invasions of bodily integrity. Second, in its failure to assure that the burdens of non-therapeutic research are not placed disproportionately on children of lower socioeconomic and minority status, it violates the antidiscrimination principle, which has only begun to make good on its promise of equal treatment for all children. Ultimately, this Article argues that harmonization of the rules governing pediatric research with the law of child protection and parents' consent authority is the best way to assure that children are protected in the research setting in these respects and to the same extent they are otherwise in the society.     

Competence to give informed consent for medical procedures

This study shows that referrals to psychiatry for evaluation for competence to give informed consent generally were made on patients who refused medical treatment. In this sample of referred patients, the only patients found to be incompetent to give informed consent were those with organic brain syndromes. No one with either schizophrenia or depression was found to be incompetent. It is possible that schizophrenic and depressed patients may generally be competent to give informed consent to medical treatment. This finding might be true notwithstanding the fact that many such patients have been found in other studies to be incompetent to consent to voluntary psychiatric treatment. For example, a patient may have delusions that others can read his mind and thoughts, but he still can understand that he needs dialysis for renal failure. Alternatively, it may be relatively rare that an emergency procedure is necessary before a patient's psychosis can be brought under control and consequently internists and surgeons themselves may prefer to wait. The significance of the results is unclear. Because of active interest in the doctrine of informed consent for psychiatric and medical patients by both physicians and attorneys and the few studies within this population, there is a strong need for more study regarding competence to give informed consent. Further study is especially important for psychotic patients for whom psychiatric consultation is not requested.(ABSTRACT TRUNCATED AT 250 WORDS)     

Minors' capacity to refuse treatment: a reply to Gilmore and Herring

Re R and Re W allow a parent to consent to treatment a competent minor refuses, but the cases have not been tested post-Human Rights Act 1998. Gilmore and Herring offer a means by which they might be distinguished or sidelined. They interpret Gillick to say that in order to consent a minor need only have a full understanding of the particular treatment. They argue that the minors in Re R and Re W were refusing all treatment which requires a separate assessment of capacity-an assessment which was not made. We fear that this distinction would not be workable in clinical practice and argue that their interpretation of Gillick is flawed. From a clinician's point of view, competence cannot always be judged in relation to a specific treatment, but instead must relate to the decision. We show that a decision can incorporate more than one treatment, and more than one decision might be made about one treatment. A minor's understanding of a specific treatment is not always sufficient to demonstrate competence to make a decision. The result is that whilst there might be situations when a parent and a minor both have the power to consent to a particular treatment, they will not share concurrent powers in relation to the same decision. Consequently, a challenge to Re R and Re W, if forthcoming, would need to take a different form. We emphasise the necessity to minimise the dichotomy between legal consent and how consent works in medical practice.     

Protection of human subjects; informed consent--FDA. Final rule

The Food and Drug Administration (FDA) is amending its current informed consent regulations to permit harmonization of the Department of Health and Human Services' (DHHS) policies on emergency research and to reduce confusion on when such research can proceed without obtaining an individual subject's informed consent. This regulation provides a narrow exception to the requirement for obtaining and documenting informed consent from each human subject, or his or her legally authorized representative, prior to initiation of an experimental intervention. The exception would apply to a limited class of research activities involving human subjects who are in need of emergency medical intervention but who cannot give informed consent because of their life-threatening medical condition, and who do not have a legally authorized person to represent them. FDA is taking this action in response to growing concerns that current rules are making high quality acute care research activities difficult or impossible to carry out at a time when the need for such research is increasingly recognized.     

The medically examined applicant for private insurance and his/her right to informed consent: a comparative analysis

Within the context of health and insurance law, an important question that arises is "to what extent is an applicant for private insurance truly capable of giving his/her 'free' and informed consent for a medical examination?". It should be borne in mind that it is the private insurer who requires a medical examination in order to gather medical information, and, moreover, that the insurer will not be inclined to conclude or carry out an insurance contract without this medical information. A distinction has to be made between not being free by legal coercion and not being (completely) free by factual circumstances. Exercising the right to informed consent involves exactly weighing up the consequences of the decision. Hence the applicant must be put in a position of being able to weigh up the consequences and take them into consideration.     

中国传统法在法的现代化进程中的几个问题的研究

本文重在探讨中国传统法在现代社会中是否存在着向现代化转折的可能 ,传统法中的一些因子是否可以成为现代法文化发达的动力并丰富现代法文化的内容。笔者认为要论述传统法的现代化问题 ,首先应该对法的现代化标准有一个基本的认识 ,要区别法的现代化、法律现代化、法制现代化的不同含义。其次 ,要尽可能客观地阐述传统法的原貌 ,分析传统法产生的文化背景。在此基础上对传统法的影响进行理论分析。笔者的结论是 :中国传统法在现代社会中并没有像有些学者所“预设”的“规律”那样消亡 ,相反传统法在现实中积极的和消极的影响随处可见。只有了解传统、理解传统 ,才能正确地解释传统、更新传统。因此在法的现代化中 ,我们应该注意的是自觉、主动 ,而不是回避或被动地改造传统法。     

Legal duties of psychiatric patients

Psychiatric practice involves an implied contract in which each party fulfills a specialized role and incurs corresponding duties and obligations to be discharged as best able. Patients incur duties at three levels. First are specific duties that arise from patients' specialized role in their own health care: (1) to provide accurate and complete information, and (2) to cooperate with treatment within the bounds of informed consent. Second are general duties that apply to all citizens, but are especially relevant within the mental health context: (1) to respect the physical integrity of self, others, and property, and (2) to obey the law. The controversial "duty to protect" is at a third level, a transcendent duty that is specific to the context at hand, but in principle can apply to more than one party. Advantages of enforcing patients' duties include better care by treating professionals, optimum level of functioning of patients, and improved systems-wide morale and safety. Breach of patients' duty has many potential consequences in the forensic sphere: termination of care, malpractice defense, criminal prosecution, and tort liability. Complicating factors include the degree and effect of patients' psychiatric impairment, patients' legal status, and the role played by psychotherapeutic transference.     

Social change, crime, and culture: The defense of provocation

What is here labeled ``a culture defense of provocation' describes a crime committed by a person who in anger kills someone forgravely insulting him, his family, or his cultural community. The defendantblames his crime on cultural dictates that compelled him, he contends, totake violent offense at the harm his victim caused. While few if anyjurisdictions accept such claims as formal grounds for exculpation orextenuation, many jurists will spare the culturally compelled killer his lifeand reduce the maximum sentence allowed, provided that he belongs to anunassimilated cultural minority group, or that his motives otherwise meritsympathy. The paper traces historical trends involving crimes, laws, anddefenses of provocation, focusing on problems associated, first, withdetermining the assimilation status of cultural defendants and, second, withincongruities between the law's expanding restrictions on killing in the nameof honor or in the heat of passion and the penchant in practice of givingculture defendants of provocation a legal break.     

Reflections on Habermas on Democracy

Jürgen Habermas is a radical democrat. The source of that self-designation is that his conception of democracy—what he calls “discursive democracy”—is founded on the ideal of “a self-organizing community of free and equal citizens,” coordinating their collective affairs through their common reason. The author discusses three large challenges to this radical-democratic ideal of collective self-regulation: 1) What is the role of private autonomy in a radical-democratic view? 2) What role does reason play in collective self-regulation? 3) What relevance might a radical-democratic outlook have for contemporary democracies? The author addresses these questions by considering Habermas' answers, and then presenting alternative responses to them. The alternatives are also radical-democratic in inspiration, but they draw on a richer set of normative-political ideas than Habermas wants to rely on, and are more ambitious in their hopes for democratic practice.     

责任政府:内涵、形式与构建路径

依现代民主政治的发展,责任政府的外延已由责任内阁制政府扩展至所有民主政府。就责任政府而言,责任应是民主政府系统中的核心要素。我国责任政府体制包括两个组成部分:一是政治问责制,即国家行政机关要对国家权力机关负责,国家行政机关首长要对自己机关的全面工作向国家权力机关负政治责任。二是行政问责制,即行政首长要对整个行政机关的工作负全面责任,行政首长具有对政府组成部门及其首长、下级行政机关及其首长、公务员的行政问责权力。目前我国行政问责在理论、实践上还存在一些问题。从行政问责逐渐发展到政治问责是我国责任政府建构之路径。     

Subverting Orthodoxy, Making Law Central: A View of Sociolegal Studies

The promise of sociolegal research varies for different constituencies. For some legal scholars it has been a promise of sustained commitment to moral and political critique of law and to theoretical and empirical analysis of law's social consequences and origins. To continue to deliver on that promise today, sociolegal studies should develop theory in new forms emphasizing the variety of forms of regulation and the moral foundations on which that regulation ultimately depends. It should demonstrate and explore law's roles in the routine structuring of all aspects of social life and its changing character as it faces the challenge of regulating relations of community not bounded solely by the jurisdictional reach of nation states.     

Unwarranted variations in the quality of health care: can the law help medicine provide a remedy/remedies?

This Article reviews the essential findings of studies of variations in quality of care according to three categories of care: effective care, preference-sensitive care, and supply-sensitive care. It argues that malpractice liability and informed consent laws should be based on standards of practice that are appropriate to each category of care. In the case of effective care, the legal standard should be that virtually all of those in need should receive the treatment, whether or not it is currently customary to provide it. In the case of preference-sensitive care, the law should recognize the failure of the doctrine of informed consent to assure that patient preferences are respected in choice of treatment; we suggest that the law adopt a standard of informed patient choice in which patients are invited, not merely to consent to a recommended treatment, but to choose the treatment that best advances their preferences. In the case of supply-sensitive care, we suggest that physicians who seek to adopt more conservative patterns of practice be protected under the "respectable minority" or "two schools of thought" doctrine.     

The 2013 CLSR-LSPI seminar on electronic identity: The global challenge – Presented at the 8th International Conference on Legal,Security and Privacy issues in IT Law (LSPI) November 11–15, 2013, Tilleke & Gibbins International Ltd., Bangkok,Thailand

We are the middle of a global identity crisis. New notions of identity are made possible in the online world where people eagerly share their personal data and leave ‘digital footprints’. Multiple, partial identities emerge distributed across cyberspace divorced from the physical person. The representation of personal characteristics in data sets, together with developing technologies and systems for identity management, in turn change how we are identified. Trustworthy means of electronic identification is now a key issue for business, governments and individuals in the fight against online identity crime. Yet, along with the increasing economic value of digital identity, there are also risks of identity misuse by organisations that mine large data sets for commercial purposes and in some cases by governments. Data proliferation and the non-transparency of processing practices make it impossible for the individual to track and police their use. Potential risks encompass not only threats to our privacy, but also knowledge-engineering that can falsify digital profiles attributed to us with harmful consequences. This panel session will address some of the big challenges around identity in the digital age and what they mean for policy and law (its regulation and protection). Questions for discussion include: What does identity mean today? What types of legal solutions are fit for purpose to protect modern identity interests? What rights, obligations and responsibilities should be associated with our digital identities? Should identity management be regulated and who should be held liable and for what? What should be the role of private and public sectors in identity assurance schemes? What are the global drivers of identity policies? How can due process be ensured where automated technologies affect the rights and concerns of citizens? How can individuals be more empowered to control their identity data and give informed consent to its use? How are biometrics and location-tracking devices used in body surveillance changing the identity landscape?