Substituted Judgment, Best Interests, and the Need for Best Respect

1994 ◽  
Vol 3 (2) ◽  
pp. 195-208 ◽  
Author(s):  
Susan R. Martyn
Keyword(s):  
Medical Treatment ◽  
Terminal Illness ◽  
Best Interests ◽  
State Courts ◽  
Substituted Judgment ◽  
Physical Suffering ◽  
The Face ◽  
The Right

Perhaps the most troublesome medical decisionmaking cases facing state courts concern serious healthcare decisions involving patients with severe or profound retardation. The courts who face this issue encounter a difficult dilemma. A decision to terminate a medical treatment of a dependent, vulnerable person requires considerable solicitude. Allowing a helpless person to die sooner than is medically possible directly conflicts with that person's most basic right – the right to live. However, continuing treatment in the face of terminal illness may not only prolong but also increase intense mental and physical suffering. Perpetuating near torture in the name of protecting a person's life may be equally worrisome.

What of the Child? Preventing the Publication of Children's Names After the Age of 18

2021 ◽  
Vol 24 ◽  
pp. 1-31
Author(s):  
Sophy Baird
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Freedom Of Expression ◽  
Best Interests ◽  
Child Victims ◽  
Criminal Proceedings ◽  
The Right To Privacy ◽  
The Face ◽  
The Right

Children are afforded a number of protections when they encounter the criminal justice system. The need for special protection stems from the vulnerable position children occupy in society. When children form part of the criminal justice system, either by being an offender, victim, or witness, they may be subjected to harm. To mitigate against the potential harm that may be caused, our law provides that criminal proceedings involving children should not be open to the public, subject to the discretion of the court. This protection naturally seems at odds with the principle of open justice. However, the courts have reconciled the limitation with the legal purpose it serves. For all the protection and the lengths that the law goes to protect the identity of children in this regard, it appears there is an unofficial timer dictating when this protection should end. The media have been at the forefront of this conundrum to the extent that they believe that once a child (offender, victim, or witness) turns 18 years old, they are free to reveal the child's identity. This belief, grounded in the right to freedom of expression and the principle of open justice, is at odds with the principle of child's best interests, right to dignity and the right to privacy. It also stares incredulously in the face of the aims of the Child Justice Act and the principles of restorative justice. Measured against the detrimental psychological effects experienced by child victims, witnesses, and offenders, this article aims to critically analyse the legal and practical implications of revealing the identity of child victims, witnesses, and offenders after they turn 18 years old.

scholarly journals Consensus in medical treatment in the French and Saudi laws: التراضي في العلاج الطبي في القانون الفرنسي والسعودي

2021 ◽  
Vol 5 (14) ◽  
pp. 91-68
Author(s):  
Mabrouk Shneeb Zarrouk Nafkha Mabrouk Shneeb Zarrouk Nafkha
Keyword(s):  
Medical Treatment ◽  
Medical Profession ◽  
The Other ◽  
Best Interests ◽  
Social Solidarity ◽  
Medical Decision ◽  
Specific Patient ◽  
Patient’S Satisfaction ◽  
Social Views ◽  
The Right

Medical treatment is mutual consent between two parties, the doctor on the one hand, and the patient on the other, to conduct a therapeutic intervention, which is initially the main goal of this research. By adopting an analytical and descriptive methodology for legal texts, opinions of jurisprudence, and judicial jurisprudence, the physician is free, in principle, to select and contract with his patients. This is what the study aims to clarify. The physician has the right to consent to contracting with or rejecting a specific patient, regardless of the nature of the motive. A doctor, like other people, has complete freedom to practice his profession in the manner that he pleases. As he has the right to accept or reject the invitation for treatment, he is not obligated to answer the patient's request. A critical reading of these texts and a comprehensive look at the opinions reveal that the doctor's refusal of treatment could come as a result of professional reasons and/or personal reasons. Others add the cases of religious convictions and the inability resulting from his lack of specialization in treating the disease. However, considering the concept of social justice, the freedom to practice the medical profession is no longer an absolute freedom exercised in that traditional individual spirit that entitles those with free professions to practice it or refrain from practicing it as they please, which is what the researcher seeks to explain. Medicine in general is nothing but a social function in which the practitioner must seek the spirit of social solidarity. As a result of these social views, the physician must commit to performing them according to the best interests of society. The doctor is not entitled to refrain from helping or answering the call of a patient. On the other hand, the study aims to clarify that medical treatment requires the patient's consent as well. It was found that there was a difference of jurisprudence regarding this, but it does not prevent the doctor from making obligations towards the patient. While some jurists believe that the doctor or surgeon has the right to impose a medical decision whose necessity he assesses in the light of his conscience and experience, even against the will of the patient, others maintain that he cannot treat the patient without taking his free and enlightened consent. Still others see that the patient must be satisfied specifically in certain cases. In this sense, the doctor is allowed to tell white or open lies. The study concluded that the doctor must, at all stages, show the patient the feasibility of the required treatment and surgery and the extent of their success before each medical or surgical intervention. The result of the recognition of the patient’s right to maintain his physical sanctity must also work on the principle of the doctor’s obligation to provide the patient with this information and inquiries until the patient’s satisfaction comes enlightened or insightful despite the emergence of realistic problems related to obtaining the patient’s satisfaction The study generally recommends: 1- Enacting new laws that override the jurisprudential differences over consent, define its cases and arrange responsibility for it. 2- Assigning a substitute to the doctor to enlighten the patient and search for his consent in specific cases 3- Appraising the creative role of jurisprudence in the article of medical contracting and resolving the related problems.

The Good Death, Virtue, and Physician-Assisted Death: An Examination of the Hospice Way of Death

1995 ◽  
Vol 4 (1) ◽  
pp. 92-97 ◽  
Author(s):  
Franklin G. Miller
Keyword(s):  
Terminal Illness ◽  
Assisted Suicide ◽  
Hospice Care ◽  
Death And Dying ◽  
Good Death ◽  
Voluntary Euthanasia ◽  
Assisted Death ◽  
Comfort Care ◽  
The Face ◽  
The Right

The problem of physician-assisted death (PAD), assisted suicide and active euthanasia, has been debated predominantly in the ethically familiar vocabulary of rights, duties, and consequences. Patient autonomy and the right to die with dignity vie with the duty of physicians to heal, but not to kill, and the specter of “the slippery slope” from voluntary euthanasia as a last resort for patients suffering from terminal illness to PAD on demand and mercy killing of “hopeless” incompetent patients. Another dimension of the debate over PAD concerns the evaluative question of what constitutes a good death. At stake are Issues of character and virtue in the face of death and dying and their Implications for legitimizing the practice of PAD. Critics of PAD argue that “natural” death in the context of comfort care, as provided by hospice programs, is the good death. In contrast, PAD amounts to an easy way out, an evasion of the ultimate human challenge and task of dying. Because hospice care is clearly preferable to PAD, the former should be encouraged and the latter remain prohibited.

scholarly journals With regard to the reform of the law of medical ethics

2015 ◽  
pp. 192-193
Author(s):  
Fernando Sánchez Torres
Keyword(s):  
Medical Ethics ◽  
Best Interests ◽  
Scope Of Practice ◽  
Current Standard ◽  
Moral Standards ◽  
The Face ◽  
The Law ◽  
The Right ◽  
The Brain

The law or code of medical ethics must be understood as the moral navigation chart of medicine practitioners, as what it is aimed with it is to help them not to get lost during the course of their work, pointing them out the right way to act with their patients and the community. That guide is the "objective moral", that is, the set of rules that dictates the society for its components, including the doctors themselves. As such, the code of medical ethics has the patient as its first beneficiary, which is the rationale of medicine. What is aimed is that the doctor be a pledge of warranty for the care of the health and life of people, interpreting that the former and the latter represent their best interests. In no way can be thought that the only purpose of the law is to protect the interests of the physicians. In 1981, it was enacted the Law 23, which is the current standard of medical ethics. Since then - 34 years later - customs in the scope of practice have substantially changed. Since customs are morally qualified and valued by society, moral must adjust its approach as those change. So it is then understandable that many of the moral standards referred to in the primal law have become obsolete. Whereas the test of time is the most severe and just laws judge, after nearly seven decades of Act 23 being tested, there have been revealed both its goodness and defects. With the advent of bioethics in the 70s decade of last century, both the face and the brain of traditional ethics suffered fundamental changes. Taken as a specialty of bioethics, medical ethics also changed, to the point that its distance from the Hippocratic ethics - in effect for over twenty centuries - forced to reassess some of the principles that underpinned it.

Trial by Triad: substituted judgment, mental illness and the right to die

2021 ◽  
pp. medethics-2020-107154
Author(s):  
Jacob M Appel
Keyword(s):  
Depressive Symptoms ◽  
Depressive Disorders ◽  
Substituted Judgment ◽  
Diminished Capacity ◽  
Accepted Standard ◽  
The Usa ◽  
Aid In Dying ◽  
Incapacitated Patients ◽  
The Right

Substituted judgment has increasingly become the accepted standard for rendering decisions for incapacitated adults in the USA. A broad exception exists with regard to patients with diminished capacity secondary to depressive disorders, as such patients’ previous wishes are generally not honoured when seeking to turn down life-preserving care or pursue aid-in-dying. The result is that physicians often force involuntary treatment on patients with poor medical prognoses and/or low quality of life (PMP/LQL) as a result of their depressive symptoms when similarly situated incapacitated patients without such depressive symptoms would have their previous wishes honoured via substituted judgment. This commentary argues for reconsidering this approach and for using a substituted judgment standard for a subset of EMP/LQL patients seeking death.

Of Love and Laetrile: Medical Decision Making in a Child's Best Interests

1979 ◽  
Vol 5 (3) ◽  
pp. 269-294
Author(s):  
Eve T. Horwitz
Keyword(s):  
Decision Making ◽  
Medical Treatment ◽  
Burden Of Proof ◽  
State Intervention ◽  
Convincing Evidence ◽  
State Agency ◽  
Best Interests ◽  
Medical Decision ◽  
Appropriate Treatment ◽  
Life Threatening

AbstractTwo recent cases have raised important questions concerning the appropriateness of state intervention in parental choices of unorthodox medical treatment for children with life-threatening conditions. This Note first discusses whether, and if so, when, state intervention in a child's treatment selection by its parents is appropriate, and then analyzes the tests a court should apply in deciding upon an appropriate treatment. The Note recommends a decision-making approach that requires the appropriate state agency to prove, by clear and convincing evidence, that the parents' choice of medical treatment either is directly or is indirectly harming their child. Under this approach, if the state meets its burden of proof the court then must apply the ‘best interests’ test, rather than the ‘substituted judgment’ test, to choose an appropriate medical treatment for the child.

scholarly journals ‘Our legal responsibility…to intervene on behalf of the child’: Recognising public responsibilities for the medical treatment of children

2021 ◽  
Vol 21 (1) ◽  
pp. 19-41
Author(s):  
Jo Bridgeman
Keyword(s):  
Medical Treatment ◽  
Social Services ◽  
Local Authority ◽  
The State ◽  
Parental Authority ◽  
Best Interests ◽  
Legal Responsibility ◽  
Local Authorities ◽  
Professional Responsibilities ◽  
Seriously Ill

This article argues for recognition of public responsibilities to protect the welfare of children with respect to decisions affecting their health and medical treatment. As the quote in the title of this article, from David Plank, the Director of Social Services responsible for bringing the case of Baby Alexandra before the courts, identifies, early cases concerning children’s medical treatment were brought by local authorities to determine responsibilities to protect the welfare of children. In cases such as Re B (1981), Re J (1990) and Re W (1992), the court was asked not only to determine the child’s best interests but also to clarify the duties of the local authority, Trust, court and child’s parents to the child. The respective duties established apply to all involved in cases brought before the courts on the question of a child’s future medical treatment, whether or not the child is in the care of the state. Recent cases concerning the medical treatment of seriously ill children have involved claims of parental authority to determine the care of their child. To the contrary, this article argues that court involvement is required when parents are disagreed with the child’s treating doctors over the child’s medical treatment because of public as well as parental and professional responsibilities for the welfare of all children.

Medical treatment and best interests: judicial interpretation of values, wishes and beliefs under the Mental Capacity Act 2005

2020 ◽  
Vol 22 (3) ◽  
pp. 165-173
Author(s):  
Owen P. O'Sullivan
Keyword(s):  
Medical Treatment ◽  
Clinical Decision ◽  
Case Law ◽  
Decision Makers ◽  
Best Interests ◽  
Content Type ◽  
The Supreme Court ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
The Uk

Purpose The prominence of the best interests principle in the Mental Capacity Act 2005 represented an important transition to a more resolutely patient-centred model regarding decision-making for incapable adults (“P”). This paper aims to examine the courts’ consideration of P’s values, wishes and beliefs in the context of medical treatment, reflect on whether this has resulted in a wide interpretation of the best interests standard and consider how this impacts clinical decision makers. Design/methodology/approach A particular focus will be on case law from the Court of Protection of England and Wales and the Supreme Court of the UK. Cases have been selected for discussion on the basis of the significance of their judgements for the field, the range of issues they illustrate and the extent of commentary and attention they have received in the literature. They are presented as a narrative review and are non-exhaustive. Findings With respect to values, wishes and beliefs, the best interests standard’s interpretation in the courts has been widely varied. Opposing tensions and thematic conflicts have emerged from this case law and were analysed from the perspective of the clinical decision maker. Originality/value This review illustrates the complexity and gravity of decisions of the clinical decision makers and the courts have considered in the context of best interests determinations for incapacitated adults undergoing medical treatment. Subsequent to the first such case before the Supreme Court of the UK, emerging case law trends relating to capacity legislation are considered.

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