Legal aspects of data cleansing in medical AI

Data quality is of paramount importance for the smooth functioning of modern data-driven AI applications with machine learning as a core technology. This is also true for medical AI, where malfunctions due to "dirty data" can have particularly dramatic harmful implications. Consequently, data cleansing is an important part in improving the usability of (Big) Data for medical AI systems. However, it should not be overlooked that data cleansing can also have negative effects on data quality if not performed carefully. This paper takes an interdisciplinary look at some of the technical and legal challenges of data cleansing against the background of European medical device law, with the key message that technical and legal aspects must always be considered together in such a sensitive context.     

Medical Marijuana Registries: A Painful Choice?

Though the medical use of marijuana is legal in thirty-three states, it remains illegal under the federal Controlled Substances Act. Any marijuana use can subject individuals to severe criminal and civil penalties under federal law. States that condition patient access and treatment on registration in a state database impose real risks on their citizens. Although many scholars have written about the tension between federal and state treatment of marijuana, this is the first article to examine marijuana patient registry privacy and fundamental rights issues. This article first reviews the relationship between marijuana use and patient treatment, with a focus on health-care and privacy rights under state and federal law. The article then explains how marijuana registries compare to broader patient registries, such as contagious disease and other medical condition patient registries, and the unique issues presented by marijuana patient registries. It then discusses the elevated risk to constitutional, privacy, and fundamental rights that may result if states do not carefully construct marijuana registries. The article concludes by proposing principles for how both states and dispensaries should approach marijuana registries in order to provide health benefits and avoid harm to patients.     

Morality and pretextuality, psychiatry and law: of "ordinary common sense," heuristic reasoning, and cognitive dissonance

The thesis of this paper is that we will not make significant progress in understanding the tensions between the legal and mental health systems until we look carefully at a series of dissonances that affect both systems. We must consider the way that the law frequently condones pretextuality as a way of dealing with troubling or cognitively dissonant information, and the way that mental health professionals encourage a self-referential concept of morality as a way of subverting legal doctrines with which they disagree. These dissonances must be considered contextually in connection with the ways that courts generally read social science data and the ways that jurors and legislators employ such cognitive devices as "ordinary common sense" and heuristic reasoning in their judgments of cases involving mental disability questions. To ameliorate the current dilemma, we must redefine institutional and professional roles, reconsider the way we privilege expertise, recalibrate our allocation of "moral jurisdiction" over these matters, and consciously confront the way our simplifying thinking mechanisms distort the underlying social and political issues.     

新冠肺炎等传染病与法医学鉴定评述

新冠肺炎致死或引发的其他法律纠纷可能涉及法医学病理解剖或者法医临床学鉴定。在日常法医学解剖中时有遇到因传染性疾病死亡患者的尸体,法医鉴定机构及鉴定人应当有风险识别意识,充分认识到在解剖、检查这类尸体时的被传染风险。法医鉴定人需要采取充分有效的防护措施。由于新冠肺炎属于新型传染性疾病,相关研究成果、信息资料更新快,鉴定中的信息参考要慎重选择。同时本文对因传染性疾病死亡患者的尸体解剖中常见的职业伦理、知情同意、保险理赔和环境保护等问题进行讨论。     

The Constitutionality of Mandates to Purchase Health Insurance

Health insurance mandates have been a component of many recent health care reform proposals. Because a federal requirement that individuals transfer money to a private party is unprecedented, a number of legal issues must be examined. This paper analyzes whether Congress can legislate a health insurance mandate and the potential legal challenges that might arise, given such a mandate. The analysis of legal challenges to health insurance mandates applies to federal individual mandates, but can also apply to a federal mandate requiring employers to purchase health insurance for their employees. There are no constitutional barriers for Congress to legislate a health insurance mandate as long as the mandate is properly designed and executed, as discussed below. This paper also considers the likelihood of any change in the current judicial approach to these legal questions.     

Defining, assigning and designing sex

This article challenges the distinction the law draws between male and female. It focuses on the legal and medical treatment of intersexual people. Analysing the nature and rate of intersexuality it argues that there is a significant number of people who cannot be described as either male or female and instead exhibit a range of sexual characteristics. Until recently the law and medicine have insisted that intersexual people should be categorized as either male or female. Surgery was performed to ensure that they had the appearance assumed to be the 'norm' for a man or woman and the law followed this medical assignment of sex. Over the last couple of years the established medical practice and the legal treatment have been challenged. This article discusses the nature of these challenges and argues that there is a strong case for rejecting the traditional legal and medical approach to intersexual people. Cosmetic surgery on intersexual babies should be delayed until the individual is old enough to be able to choose their own sexual identity, which may be neither male nor female. The insistence that every person must either be male or female is no longer supportable in medical or social terms and a much wider range of sexual identities must be recognized by the law.     

Raising the "civilized minimum" of pain amelioration for prisoners to avoid cruel and unusual punishment

This Article addresses the problems with our nation's cultural and legal prohibitions against certain pain management treatments. The practice of pain management has not kept pace with the many medical advances that have made it possible for physicians to ameliorate most pain. The Author notes that some patients are denied access to certain forms of treatments due to the mistaken belief that addiction may ensue. Additionally, some individuals are under-treated for their pain to a greater degree than are others. This is especially the case for our nation's prisoners. The Author contends that prisoners are frequently denied effective pain amelioration. He notes, however, that there has been improvement in medical treatment in general for prisoners due to court challenges based on the Eighth Amendment's prohibition against cruel and unusual punishment. Yet, due to the protection of qualified immunity given to jailers and prison health care providers, prisoners cannot bring a claim for negligence or medical malpractice, they must allege a violation of their constitutional rights, a significantly higher legal standard. Prisoners must meet a subjective test showing that there was a deliberate indifference to their medical needs that violates the protection of the Eighth Amendment. The Author concludes that because medical advances have made it possible to alleviate most pain suffering, withholding pain treatment or providing a less effective treatment is tantamount to inflicting pain and should be viewed as a violation of the Eighth Amendment.     

Regulating smart home technology devices under Malaysian legal framework

Notwithstanding the substantial benefits from the deployment of smart technology devices in a home, the prevalent issues of safety and security protection for the users from defective and malfunction of home devices under the law is still inadequate. This paper adopts doctrinal legal research where statutory provisions of products safety and quality standards, laws and guidelines will be analysed. This paper proposes that, in order for Malaysian consumer law to provide protection to the smart home users, the law must be able to clearly address consumer-related issues in a smart home. On the other side, the statutory Housing Sale and Purchase Agreement should be able to address issues related to the smart infrastructure in a home to avoid injustice and denial of right of the smart home buyers to be protected by the law. In addition, the requirement to strengthen rules on duty and responsibility of smart home stakeholders should be addressed to ensure manufacturers and service providers adhere to the products’ safety requirements. This study is beneficial in terms of acquainting housing and consumer regulatory body to take into consideration the needs to review the existing law to avoid discrepancies in facing the emerging of technologies in housing development.     

论输血及血液制品感染的侵权责任——基于日本法上的经验

在医学界,血液被称为"生命的源泉"。然而,近年来,随着临床用血和血液制品使用的大量增加,患者感染梅毒、肝炎、甚至艾滋病的案例已屡见不鲜。而上世纪末,我们的邻国日本也曾遭遇过同样的"血液之殇",日本司法实践在处理诸如"东大梅毒事件"、"药害肝炎事件"、"药害艾滋事件"上的成功经验会带给我国怎样的启示,以下将对日本法上血液的法律属性、医疗过失的判断标准、因果关系的证明以及医药产品责任主体的责任分配等进行分析,并结合我国《侵权责任法》相关规定,从法解释学的角度出发,针对我国司法现状,探讨日本法对我国在法律解释适用方面的借鉴意义。     

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.     

Health Status of Incarcerated Adolescents: Implications for Juvenile Justice Decision Making

Adolescents arriving in detention often bring with them significant medical, dental, and psychological problems. These issues have important implications for courts that must decide the best disposition for offending youths. Appropriate treatment benefits the individual by enhancing his/her well‐being and improving his/her chances of successful rehabilitation. Society also benefits by avoiding the higher cost of caring for neglected conditions later in life. A comprehensive health care program for detention facilities involves establishing standardized procedures that address both common adolescent problems plus those more peculiar to detainees. Health care professionals working in a correctional setting have unique duties such as clearing youths for boot camp, monitoring injuries, dealing with resistant patients, monitoring for safe activities, and planning aftercare for youths who may face impediments to accessing care such as poor motivation and poverty. Research concerning issues specific to the needs of incarcerated youths remains infrequent and should be undertaken by health care providers. This article provides an overview of medical issues confronting juvenile offenders that should be considered when a juvenile becomes involved in the juvenile justice system.     

Silent suicide in the elderly

The suicide rate in the United States rises consistently with age. Silent suicide is defined as the intention, often masked, to kill oneself by nonviolent means through self-starvation or noncompliance with essential medical treatment. Silent suicide frequently goes unrecognized because of undiagnosed depression and the interjection of the personal belief systems of health-care providers and family members. Elderly individuals committing silent suicide are often thought to be making rational end of life decisions. However, the elderly committing silent suicide must be distinguished from terminally ill patients who refuse further treatment in order not to prolong the act of dying. The clinical/legal issues surrounding silent suicide will be discussed.     

Japan's new Mental Health Law: more light shed on dark places?

The legislative response to the crisis in the Japanese mental health care system has, on the one hand, been prophylactic. The major thrust of legal reform has been to prevent the human rights abuses which occurred all too easily under the former structure of legal regulation. Thus, a new category of admission, voluntary admission, has been recognized and promoted as the preferred hospitalization procedure. Standards for the physical treatment of patients have been promulgated, and procedures instituted for review of periodic reports and requests for discharge or improved physical treatment, with notification given patients as to their rights under the law. The model chosen for this new system of safeguards is far from a thorough-going legalistic model. Patients have no right to a judicial hearing. Even the informal hearing provided may be limited, or eliminated in the PRB's discretion. Reliance is placed upon the PRB and the Designated Physicians to protect the patient's rights and to prevent improper admission and treatment. However, the PRB is not independent. It is appointed by the prefectural governor and its functional units, the review panels, are controlled by Designated Physicians judging, in most cases, decisions or actions taken by other Designated Physicians. The individual Designated Physicians to whom are entrusted many of the critical diagnostic, therapeutic and physical treatment decisions respecting an individual patient will in many cases be, moreover, an employee of the hospital concerned. Beyond this closed administrative process, there are, in legal terms, only the extraordinary powers of the governor or Minister of Health and Welfare to detect improper admissions or physical treatment and remedy them by order. There are no appeal procedures and no access to the courts specifically provided within the Law's system of safeguards. Certain areas of concern, such as the right to refuse certain types of medical treatment, are not addressed in the Law at all. The new system of legal safeguards reflects the continuation of a paternalistic, medical model in which abuses will be more difficult to hide from the light of the new, carefully channeled and limited administrative review process. Related to but even beyond the question of the prevention of human rights abuses, the new Law is also concerned with the affirmative realization of the most important right of the mental patient, the right to effective treatment and a return to a normal place in society.(ABSTRACT TRUNCATED AT 250 WORDS)     

法医临床学与新冠疾病有关的鉴定问题及思考

2020年1月爆发新型冠状病毒,由疫情引发的各种问题引起社会各界高度重视,疫情过后,相关法律争议会有出现。本文针对疫情可能带来的法医临床鉴定相关问题予以思考,给出了法医临床学鉴定流程管理以及鉴定机构法律风险防控的基本思路。关于人身损害赔偿及工伤补偿中的伤残评定问题,作者具体梳理了7个可能相关的鉴定标准,并指出,肺功能障碍的条款是我们需要重点关注的内容。面对因疫情爆发而引发的医疗损害鉴定问题,作者认为,针对特殊时期的医患纠纷,鉴定人在评价医方的专家注意义务时,应充分考量各种影响因素,提倡对医疗行为相对宽松的处理原则,宜适用合理医师标准(即Bolam标准),来体现对医疗行业的尊重。本文针对新冠疾病疫情可能带来的法医学鉴定问题给予了建议和解决路径,旨在为疫情过后鉴定工作提供新思路。     

医学生临床法律意识和能力的调查及分析

2008年教育部、卫生部联合印发了《本科医学教育标准——临床医学专业（试行）》（教高[2008]9号）文件,指出本科临床医学专业毕业生必须树立依法行医的法律观念,学会用法律保护病人和自身的权益。本文通过对250名在校医学生的法律意识和能力的调查统计,反映出现在医学院校中医学法律教育存在的问题,并针对问题提出了应加强医学生在校基础理论教育阶段、准备临床实习前期、临床实习阶段三个重要阶段的医学法律教育。     

From both sides now: informed consent, organ transplantation, and family-based disclosure

Drawing on the legal and social development of the right of individual patients to give informed consent to medical treatment, this article explores some implications of heroic life-saving measures in medicine that are made possibly by unprecedented advances in medical technology. Talcing cardiac transplantation as its primary example, the article examines the broader effects, both short-term and long-term, on family members as well as on the patient of this and similar types of heroic treatment. The author then offers a novel legal theory: where the heroic measure holds the risk of serious or life threatening changes, not just for the patients themselves but for their intimately connected family members as well, those members ought to have a legal right to participate in the informed consent process. The author sketches the contours of such a right and defends it in the face of various objections that may be made to it. I've looked at life from both sides now from win and lose, and still somehow it's life's illusions I recall. I really don't know life at all. (“Both Sides Now,” on Colors of the Day: The Best of Judy Collins, Electra Records 1972)     

A NOTE ON PERCEPTUAL DETERRENCE,RELIGIOUSLY BASED MORAL CONDEMNATION,AND SOCIAL CONTROL*

Empirical investigations of social control mechanisms are often limited to single sources of control, such as the efficacy of legal punishments. Because research has produced only moderate support for the hypothesis that perceived risk of legal punishments reduces the likelihood of nonconformity, some have searched sources of control that condition this relationship. such as the degree of moral condemnation individuals hold toward a criminal/delinquent act. However, relevant research has resulted in contradictory findings. Using cross-sectional and panel data, we obtained results that show that moral condemnation of an act conditions the deterrent relationship and that findings from previous studies may have underestimated the effect of legal deterrents given the presence of those in the population who refrain from marijuana use because it is believed to be sin fur. Implications of the findings for the relative deterrability of serious versus minor offenses and the relevance of this distinction for issues of social control are discussed.     

Trajectory of Reform: Catholicism,the State and the Civil Society in the Developments of LGBT Rights

This paper examines legislative variations in LGBT identities, addressing the question: why and how do two largely Catholic states—Italy and Spain—endow different legal treatment to LGBT identities? Italy and Spain present important similarities in their legal, social and historical backgrounds. The legal cultures of both of these states have legal frameworks decriminalizing homosexuality. Nevertheless, they have approached same-sex unions in quite different ways. Spain has introduced same-sex marriage. Italy has hindered, consequently legal recognition remains fiercely contested and unrealized. Overall, it is argued that it is in the area of same-sex unions that some of the most significant changes have taken place in family law over the past decade in a number of jurisdictions. The paper argues that legal reforms in family law must be understood in terms of relation between society and law and must draw upon the concept of “culture”. The two jurisdictions appear to support the theoretical perspective that reforms and lack of reforms in family law are inspired by a number of contexts such as religious values, ideas of political morality and State interests.     

Roman concept of mental capacity to make end-of-life decisions

When assessing decisional competence of patients, psychiatrists have to balance the patients' right to personal autonomy, their condition and wishes against principles of medical ethics and professional discretion. This article explores the age-old legal and ethical dilemmas posed by refusal of vital medical treatment by patients and their mental capacity to make end-of-life decisions against the background of philosophical, legal and medical approaches to these issues in the time of the Younger Pliny (c62-c113 CE). Classical Roman discourse regarding mental competency and "voluntary death" formed an important theme of the vast corpus of Greco-Roman writings, which was moulded not only by legal permissibility of suicide but also by philosophical (in modern terms, moral or ethical) considerations. Indeed, the legal and ethical issues of evaluating the acceptability of end of life decisions discussed in the Letters are as pertinent today as they were 2000 years ago. We may gain valuable insights about our own methodologies and frames of reference in this area of the law and psychiatry by examining Classical Roman approaches to evaluating acceptability of death-choices as described in Pliny's Letters and the writings of some of his peers.     

The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: Part 3 (Victoria)

This is the final article in a series of three that examines the legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment from adults who lack capacity. This article considers the position in Victoria. A review of the law in this State reveals that medical professionals play significant legal roles in these decisions. However, the law is problematic in a number of respects and this is likely to impede medical professionals' legal knowledge in this area. The article examines the level of training that medical professionals receive on issues such as refusal of treatment certificates and substitute decision-making, and the available empirical evidence as to the state of medical professionals' knowledge of the law at the end of life. It concludes that there are gaps in legal knowledge and that law reform is needed in Victoria. The article also draws together themes from the series as a whole, including conclusions about the need for more and better medical education and about law reform generally.