Privileging the medical norm: liberalism, self-determination and refusal of treatment

Legal Studies ◽  
1996 ◽  
Vol 16 (3) ◽  
pp. 348-367 ◽  
Author(s):  
John A Harrington
Keyword(s):  
Informed Consent ◽  
Medical Treatment ◽  
Medical Profession ◽  
Self Determination ◽  
Medical Law ◽  
Refusal Of Treatment ◽  
Medical Context ◽  
Legal Thinking ◽  
The Law

In the last twenty-five years consent has emerged as central to ethical and legal thinking on medical treatment. The meaning of consent and its importance and applicability in the medical context has been tested by scholars and judges in most western jurisdictions. This essay seeks to re-examine the role of consent in medical law in England having regard to a recent series of cases concerning the refusal of treatment. By linking the law, as it has emerged from these decisions, with that developed in the 1980s concerning the doctrine of informed consent it should be possible to draw some conclusions regarding the role of law and the courts in medicine. Throughout we shall be contrasting the supposedly traditional and outdated paternalism of the medical profession with the liberal, pro-autonomy strategies of (mainly) academic commentators.

scholarly journals PENGHENTIAN TINDAKAN MEDIS YANG DAPAT DIKUALIFIKASIKAN SEBAGAI EUTHANASIA

2018 ◽  
Vol 3 (1) ◽  
pp. 47-58
Author(s):  
Galih Nurdiyanningrum
Keyword(s):  
Informed Consent ◽  
Medical Treatment ◽  
Conceptual Approach ◽  
The Law ◽  
Law Regulation

The studies of Euthanasia is interesting to be discuss, how about the law regulation in Indonesia, specially the concept of Pasif Euthanasia connecting with stopping medical act based on Informed Consent from patient or their family which done by the doctor and law effect for the doctor. This study is a normatif research with statute approach and conceptual approach. In this thesis, the writer focussing her study in stopping medical act which can be classified as Euthanasia is stopping the medicines, medical treatment and ignoring the patient. The purpose of this thesis is to research in dept that informed consent from patient or their family is use to prevent the doctor from the law impact cause by the stopping Medical Act. The role of doctor is very important in giving suggestion, solution and try to give the emphaty to the patient before they decided to stop the Medical Act to themselves. Hopefully this thesis can give a new paradigma and beneficial enough to the reader.

Crisis and Informed Consent: Analysis of a Law-Medicine Malocclusion

1987 ◽  
Vol 12 (1) ◽  
pp. 55-97 ◽  
Author(s):  
Fran Carnerie
Keyword(s):  
Informed Consent ◽  
Medical Treatment ◽  
Clinical Setting ◽  
Patient Relationship ◽  
Physician Patient Relationship ◽  
Catastrophic Illness ◽  
Physician Patient ◽  
Emotional Impairment

AbstractMany individuals develop a temporary state of cognitive and emotional impairment after being diagnosed with catastrophic illness. Thus, when crucial decisions about medical treatment are required, they are unable to assimilate information; or worse, the legal need to be informed can rival a psychological desire to not be informed. The Canadian informed consent doctrine is unresponsive to crisis and clinically impracticable, and so paradoxically compromises the integrity and autonomy it was designed to protect. Many aspects of the physician-patient relationship and clinical setting also undermine the philosophical values enshrined in this doctrine. This further jeopardizes the individual's integrity. The Article explores proposals for change such as delaying the informing and consenting, improving the concept of consent, and improving the role of the physician.

scholarly journals The role of legal intellection in the lawmaking mechanism

2020 ◽  
Vol 6 (3) ◽  
pp. 67-73
Author(s):  
Ekaterina A. Petrova
Keyword(s):  
Special Kind ◽  
Thinking Style ◽  
Legal Traditions ◽  
Methods And Techniques ◽  
Legal Thinking ◽  
The Law ◽  
Legal Understanding ◽  
Law Making

The article gives the authors interpretation of legal intellection as a special kind of professional thinking. It is underlined that legal intellection is directly connected with lawmaking, since the law is a result of both of these processes. The main directions of its influence on the elements of the lawmaking mechanism are considered. The author interprets lawmaking mechanism as a set of interrelated and interdependent technical and legal elements that support law creation. These elements include the law-makers; law-making methods and techniques; the rules of claw; forms (sources) of law. It is noted that the lawyers belonging to a particular type of legal understanding determines the understanding of lawmaking process. The author analyzes the influence of legal thinking style, determined by legal traditions of various legal families, on application of various forms of law as a result of lawmaking. The examples from Russian and American legal reality are given. The problem of legal intellection level of lawmakers is discussed, because of its influence on the quality of sources of law. It is concluded that legal intellection as a special kind of professional thinking permeates all types of legal activities and, first of all, directly affects the specifics of the lawmaking mechanism, determining the content of its main elements: the law-makers are the holders of legal intellection; methods, techniques of law-making are determined by the stylistic features of legal thinking; the quality of the forms of law created in the lawmaking process directly depends on the legal thinking level of their creators.

Legal Rules for Recovery

2001 ◽  
Author(s):  
Jessica W. Berg ◽  
Paul S. Appelbaum ◽  
Charles W. Lidz ◽  
Lisa S. Parker
Keyword(s):  
Informed Consent ◽  
Legal Theory ◽  
Medical Profession ◽  
Physician Behavior ◽  
Medical Decision ◽  
Legal Doctrine ◽  
Legal Rules ◽  
Judicial Remedy ◽  
The Law ◽  
Injured Patients

This chapter deals with the legal theory and procedural framework under which patients can obtain redress for their injuries resulting from treatment administered in the absence of informed consent. The evolution of the legal doctrine was driven by the demands of patients for redress for injuries, and more attention has been given by courts and legislatures to the questions of when and how compensation might be obtained than to providing guidance for clinicians. In some important respects, the distinction between the law as it applies to the physician engaged in medical decision making with a patient and the law as it applies to that same patient who later seeks compensation in the courts is an artificial one. Insofar as the spirit of informed consent is not embraced voluntarily by the medical profession, but is adhered to in large part to avoid the likely consequences of failure to observe the legal rules, physician behavior will be shaped not only by the rules themselves but also by the way they are enforced. If, for example, the rules governing the means of redress were complex, time-consuming, and unlikely to yield the desired compensation, few injured patients would pursue a judicial remedy. As a result, physicians would eventually realize that adverse consequences were unlikely to follow from a failure to observe the relevant rules and, except to the extent that they had accepted the ethical theory of informed consent, their adherence to the doctrine would crumble. Some critics of the present system contend that this has already happened (see Chapter 7). On the other hand, rules that make recovery easier and more certain would be likely to encourage compliance with the requirements for informed consent. Differential emphasis by the courts on particular kinds of lapses by clinicians might also shape their actions accordingly. For example, the courts’ focus on risk information has led many physicians to tailor disclosure to emphasize risks. Thus, the issues addressed in this chapter, although framed in legal terminology, are important (some would argue crucial) determinants of the ultimate impact of informed consent.

Contract as Promise: Lessons Learned

2019 ◽  
Vol 20 (2) ◽  
pp. 367-379
Author(s):  
Charles Fried
Keyword(s):  
Twentieth Century ◽  
Contract Theory ◽  
Choice Theory ◽  
Contract Law ◽  
Lessons Learned ◽  
Self Determination ◽  
Theory Approach ◽  
The Law ◽  
The Way

Abstract In The Choice Theory of Contracts, Hanoch Dagan and Michael Heller state that by arguing “that autonomy matters centrally to contract,” Contract as Promise makes an “enduring contribution . . . but [its] specific arguments faltered because [they] missed the role of diverse contract types and because [it] grounded contractual freedom in a flawed rights-based view. . .. We can now say all rights-based arguments for contractual autonomy have failed.” The authors conclude that their proposed choice theory “approach returns analysis to the mainstream of twentieth-century liberalism – a tradition concerned with enhancing self-determination that is mostly absent in contract theory today.” Perhaps the signal flaw in Contract as Promise they sought to address was the homogenization of all contract types under a single paradigm. In this Article, I defend the promise principle as the appropriate paradigm for the regime of contract law. Along the way I defend the Kantian account of this subject, while acknowledging that state enforcement necessarily introduces elements — both normative and institutional — for which that paradigm fails adequately to account. Of particular interest and validity is Dagan and Heller’s discussion of contract types, to which the law has always and inevitably recurred. They show how this apparent constraint on contractual freedom actually enhances freedom to contract. I discuss what I have learned from their discussion: that choice like languages, is “lumpy,” so that realistically choices must be made between and framed within available types, off the rack, as it were, and not bespoke on each occasion. I do ask as well how these types come into being mutate, and can be deliberately adapted to changing circumstances.

The Future of Informed Consent in British Common Law

1999 ◽  
Vol 6 (3) ◽  
pp. 235-248 ◽  
Author(s):  
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Informed Consent ◽  
Medical Profession ◽  
Common Law ◽  
European Convention ◽  
The United Kingdom ◽  
The Future ◽  
The Common ◽  
The Law

AbstractWithin the common law world, the use of the term informed consent implies the American doctrine. Informed consent as a doctrine is not part of the law in the United Kingdom. However, it is possible to predict a way forward in disclosure cases yet to be heard in the courts of the United Kingdom. These predictions are based on current developments in the common law in the United Kingdom as well as those in Canada and Australia, on the European convention on Human Rights and Biomedicine and on trends within the medical profession itself in the light of the Bolam test.

Refusal of medical treatment

Legal Studies ◽  
1983 ◽  
Vol 3 (1) ◽  
pp. 50-59
Author(s):  
A. H. Hudson
Keyword(s):  
Medical Treatment ◽  
Case Law ◽  
Refusal Of Treatment ◽  
The Law ◽  
Workmen's Compensation

It is a commonplace of the law of mitigation and remoteness in tort that if a plaintiff who has suffered tortiously inflicted personal injuries unreasonably refuses medical treatment he will be regarded as having failed to mitigate. Tersely stated this may seem almost self-evident though case law here and in Australia shows that it involves a number of difficult issues.Workmen's Compensation supplied a prologue to the present law. Though the statutes nowhere required an injured workman to mitigate by undergoing treatment, the courts held that any incapacity which could be regarded as resulting from a workman's unreasonable refusal of treatment was not proximately caused by the accident on which the claim was based and hence did not qualify for compensation.

The medical profession and international humanitarian law

1985 ◽  
Vol 25 (247) ◽  
pp. 191-209 ◽  
Author(s):  
Jean Pictet
Keyword(s):  
Major Element ◽  
Medical Profession ◽  
Medical Services ◽  
International Humanitarian Law ◽  
Medical Law ◽  
Humanitarian Law ◽  
Sick People ◽  
The Law

International humanitarian law, whose purpose is to attenuate the evils of war, has been intimately bound from its earliest days to doctors and all others whose mission in life is to heal—the noblest of all professions. The fact is that this law originated from the need to make up for the deficiencies of military medical services and protect those wounded in war. Since then, the law has gone far beyond that framerwork and has extended its protection and solicitude to many other victims of conflicts and also, in peacetime, to victims of day-to-day life—sick people. An essentially medical element was the basis of the law, and continues to be a major element, referred to by some as “medical law”.

4. Informed Consent

Medical Law ◽  
2019 ◽  
pp. 195-236
Author(s):  
Emily Jackson
Keyword(s):  
Informed Consent ◽  
Medical Treatment ◽  
Supreme Court ◽  
Information Disclosure ◽  
Medical Profession ◽  
Legal Framework ◽  
Court Case ◽  
Supreme Court Case ◽  
Consent To Medical Treatment ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter examines the issue of ‘informed consent’, i.e. how much information must be provided to patients before they consent to medical treatment. It first considers the ethical justifications for informing patients about their medical treatment and then examines the legal framework that protects patients’ interests in information disclosure, with particular emphasis upon the implications of the recent landmark Supreme Court case of Montgomery v Lanarkshire. The chapter also explores some alternatives to the law of tort, and the importance of the guidance produced by the medical profession.

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