Does the General Medical Council’s 2020 guidance on consent advance on its 2008 guidance?

2021 ◽  
pp. medethics-2021-107347
Author(s):  
Abeezar I Sarela
Keyword(s):  
Public Reason ◽  
General Medical Council ◽  
Case Law ◽  
The Other ◽  
Medical Professionals ◽  
Medical Council ◽  
Proper Treatment ◽  
Other Hand ◽  
Analyse Case

The General Medical Council renewed its guidance on consent in 2020. In this essay, I argue that the 2020 guidance does not advance on the earlier, 2008 guidance in regard to treatments that doctors are obliged to offer to patients. In both, doctors are instructed to not provide treatments that are not in the overall benefit, or clinical interests, of the patient; although, patients are absolutely entitled to decline treatment. As such, consent has two aspects, and different standards apply to each aspect. To explore this paradigm, I propose the reconceptualisation of consent as a person’s freedom to achieve treatment, using Amartya Sen’s approach. Sen explains that freedom has two aspects: process and opportunity. Accordingly, a patient’s freedom to achieve treatment would comprise a process for the identification of proper treatment, followed by an opportunity for the patient to accept or decline this treatment. As per Sen, the opportunity aspect is to be assessed by the standard of public reason, whereas the standard for the process aspect is variable and contingent on the task at hand. I then use this reconceptualised view of consent to analyse case law. I show that senior judges have conceived the patient’s opportunity to be encompassed in information, which is to be decided by public reason. On the other hand, the process aspect relies on the private reason of medical professionals. Given the nature of professionalism, this reliance is inescapable, and it is maintained in the case law that is cited in both guidances.

Physical Education and Religious Freedom

2019 ◽  
pp. 144-155
Author(s):  
Konstantinos Margaritis
Keyword(s):  
Human Rights ◽  
Physical Education ◽  
Religious Freedom ◽  
Case Law ◽  
Democratic Society ◽  
The Other ◽  
Recent Case ◽  
Freedom Of Religion ◽  
Other Hand ◽  
European Court

Freedom of religion has been constantly characterized as one of the foundations of a democratic society. On the other hand, the significance of physical education in the development of children's overall personality is beyond dispute. Thus, the question that arises is, What happens in a case of a conflict involving the above? The aim of this chapter is to provide an answer on the basis of the case law of the European Court of Human Rights. In particular, the fundamental cases of Dogru vs. France and Kervanci vs. France will be examined, as well as the recent case of Osmanoglu and Kocabas vs. Switzerland. Through the analysis of the cases, useful conclusions will be drawn on the possible impact of religious freedom on physical education.

scholarly journals Statutory Decrystallisation of the Floating Charge: Implications for Business Sustainability

2016 ◽  
Vol 5 (1) ◽  
pp. 237
Author(s):  
Friday Okafor Onamson
Keyword(s):  
Case Law ◽  
The Other ◽  
Fixed Charge ◽  
Business Sustainability ◽  
Going Concern ◽  
Statutory Provision ◽  
General Law ◽  
Other Hand ◽  
The One ◽  
The Relationship

This paper analyzes the provisions of the Nigerian Companies and Allied Matters Act 2004 which, against the grain of general law rules on decrystallisation of floating charge, provides that a crystallised floating charge can decrystallise or refloat where the creditor withdraws from possession after the debtor has commenced payment or if the receiver, with consent of the creditor, is withdrawn. The analysis is relevant because the provision has dire implications for business sustainability since parties engage in debt transaction to sustain the going concern basis of their businesses. Bearing in mind that uncertainty pervades the boundaries between fixed and floating charge, the paper asks what is the priority status of a decrystallised floating charge as against a floating charge created prior to refloatation; and what is the relationship between the decrystallised floating charge and a fixed charge that predated the decrystallisation on the one hand and a fixed charge created post refloatation on the other hand. Using the case law and existing literature the paper showed that the statutory provision for decrystallisation of floating charge not only failed to clarify the general law rules on decrystallisation of floating charge, but it has cast a veil of uncertainty over the rights of parties to a debt transaction secured by floating charge. Since the provision can impact on the health of businesses, it behoves on the parties to be proactive in crafting debts contracts creating an interest secured by floating charge.

scholarly journals Le Sezioni Unite della Cassazione sul crocifisso a scuola: alla ricerca di un difficile equilibrio tra pulsioni laiciste e giurisprudenza europea

2021 ◽  
Author(s):  
Paolo Cavana
Keyword(s):  
Case Law ◽  
The Other ◽  
Reasonable Accommodation ◽  
State School ◽  
Freedom Of Conscience ◽  
Religious Symbols ◽  
Other Hand

SOMMARIO - 1. Il crocifisso in classe davanti alle Sezioni Unite - 2. Laicità dello Stato e autonomia scolastica - 3. Conflitto tra diritti e reasonable accommodation - 4. La regola della reasonable accommodation nella giurisprudenza straniera e italiana - 5. Il crocifisso come simbolo “essenzialmente passivo” nella giurisprudenza europea - 6. Reasonable accommodation in assenza di una lesione di diritti: rilievi critici - 7. Bilanciamento dei diritti e legislazione scolastica - 8. Il rapporto asimmetrico tra docente e alunni nella scuola: un dato del tutto omesso - 9. La rimozione del crocifisso da parte del docente: un atto lecito? Osservazioni conclusive. The Supreme Court’s United Sections on the Crucifix controversy in schools: searching for a difficult balance between laicism and European case-law ABSTRACT: This paper examines critically, in the light of the Italian and European case-law, the contents and the juridical arguments of a recent decision issued by the United Sections of the Italian Court of Cassation concerning the Crucifix controversy arisen in a State school. The judges established, on one hand, that the crucifix may be hung in a classroom upon demand of the students as it does not infringe the dissenting teacher’s freedom of conscience or of teaching, according to Lautsi ECHR decision (2011); on the other hand, the clash of values involved would need a reasonable accommodation which could require other religious symbols alongside the crucifix or its removal during the lessons of the dissenting teacher. Such a decision, according to the author, appears to be somewhat contradictory and ambiguous, and it does not resolve the case in a well-balanced way.

Differentiating spiritual experiences from mental disorders

2021 ◽  
pp. 79-94
Author(s):  
Leonardo Machado ◽  
Alexander Moreira-Almeida
Keyword(s):  
Differential Diagnosis ◽  
Mental Disorders ◽  
Mental Disorder ◽  
Clinical Guidelines ◽  
Scientific Evidence ◽  
The Other ◽  
Spiritual Experiences ◽  
Proper Treatment ◽  
Empirical Base ◽  
Other Hand

It is not uncommon for patients with mental disorders to have symptoms with religious or spiritual (R/S) contents, and, on the other hand, spiritual experiences often involve psychotic-like phenomena. This frequently creates difficulties in differentiating between a non-pathological R/S experience and a mental disorder. Clinical differentiation between a non-pathological R/S experience and a mental disorder with R/S content brings risks in both extremes: to pathologize normal R/S experience (promoting iatrogenic suffering) or neglecting pathological symptoms (delaying proper treatment). In order to mitigate these risks, this chapter will gather the best current scientific evidence and propose clinical guidelines to help the distinction between R/S experiences and mental disorders with R/S content. Scientific studies in people who have spiritual experiences should be encouraged, especially investigations of the phenomenology, neurobiology, precipitants, and outcomes in order to enlarge the empirical base needed to advance the criteria for this differential diagnosis.

scholarly journals Protecting altruism: A call for a code of ethics in British psychiatry

2003 ◽  
Vol 183 (2) ◽  
pp. 95-97 ◽  
Author(s):  
Sameer P. Sarkar ◽  
Gwen Adshead
Keyword(s):  
Mental Health ◽  
Professional Identity ◽  
Public Safety ◽  
Code Of Ethics ◽  
General Medical Council ◽  
Codes Of Ethics ◽  
Medical Professionals ◽  
Medical Council ◽  
Essential Aspect ◽  
User Movement

Codes of ethics have existed for medicine since the time of Hippocrates. However, a written code of ethics (like a written constitution) has so far eluded British psychiatry. In this editorial we discuss the arguments for and against a code of ethics as an essential aspect of our identity as medical professionals. Our professional identity as psychiatrists is coming under scrutiny from the General Medical Council, the emergence of the user movement and the proposals in the draft Mental Health Bill. At a time when psychiatry is seen increasingly as a guardian of public safety, there has never been a more pressing need for a code of ethics.

scholarly journals Glosa do wyroku Sądu Okręgowego we Wrocławiu z dnia 16 lutego 2018 r. (III KK 125/17)

2019 ◽  
Vol 28 (4) ◽  
pp. 187
Author(s):  
Krzysztof Wala
Keyword(s):  
Case Law ◽  
Criminal Code ◽  
The Other ◽  
Current Case ◽  
Other Hand ◽  
The One

<p>The current case law regarding the recognition of racially motivated offences as being undertaken without a reason or for an obviously trivial reason can raise serious doubts. It does not seem reasonable to assume the existence of a racial reason of the act of the perpetrator on the one hand, which is necessary for assigning an offence under Article 119 § 1 and Article 257 of the Criminal Code, and on the other hand, to recognise that the reason for the act of the perpetrator did not exist at all. Treating such reasons as trivial may also raise doubts on the juridical level.</p>

scholarly journals GMC: Time to Reconsider the Civil Standard of Proof

2013 ◽  
Vol 95 (2) ◽  
pp. 56-58 ◽  
Author(s):  
A van Dellen
Keyword(s):  
General Medical Council ◽  
Case Law ◽  
Medical Council ◽  
Standard Of Proof ◽  
Current State ◽  
House Of Lords ◽  
The Law

From 2008 the General Medical Council (GMC) fitness to practise (FTP) hearings adopted the civil standard of proof, based on leading counsel's opinion that account would be taken of the seriousness of the allegation. in light of case law from the House of Lords, this almost certainly does not represent the current state of the law with regard to the civil standard of proof.

Australia

2018 ◽  
Author(s):  
Lisa Waddington
Keyword(s):  
Legal System ◽  
Case Law ◽  
The Other ◽  
Disability Rights ◽  
Persons With Disabilities ◽  
Other Hand ◽  
Wide Range ◽  
Domestic Law

Given the dualist nature of the Australian legal system, the potential for the Convention on the Rights of Persons with Disabilities (CRPD) to impact on case law is seemingly limited. Nevertheless, a wide range of Australian courts have referenced the Convention in their judgments, and the Convention has certainly been used to bolster or support the reasoning of courts in a number of cases, with at least one court going as far as interpreting Convention provisions and using this interpretation to further the development of domestic law on disability rights. On the other hand, Australian courts have also on occasions explicitly stated that they found the Convention to be inapplicable or irrelevant and have given a variety of reasons for reaching this finding. The Australian cases explored in this chapter therefore represent a wide diversity of judicial responses to the CRPD, and provide the basis for a fruitful discussion and analysis.

4. Uncertain and Incomplete Agreements

Contract Law ◽  
2018 ◽  
Author(s):  
Ewan McKendrick
Keyword(s):  
Case Law ◽  
The Other ◽  
Considerable Difficulty ◽  
Other Hand ◽  
Legal Effect ◽  
The One

The parties to agreements sometimes express themselves in terms that are vague, incomplete, or uncertain. The courts have experienced considerable difficulty in deciding whether or not an agreement has been expressed in a form that is sufficiently certain for them to enforce. On the one hand, judges generally do not wish to be seen to be making the contract for the parties, and on the other hand, are reluctant to deny legal effect to an agreement that the parties have apparently accepted as valid and binding. The result has been a degree of tension in the case-law. This chapter examines two groups of cases. The first group consists of cases in which it was held that the agreement was too uncertain or too vague to be enforced, while the second comprises a number of cases in which the courts have concluded that the agreement was valid and binding.

The evolving notion of mutual recognition in the CJEU’s case law on detention

2018 ◽  
Vol 25 (6) ◽  
pp. 689-703 ◽  
Author(s):  
Pedro Caeiro ◽  
Sónia Fidalgo ◽  
João Prata Rodrigues
Keyword(s):  
European Union ◽  
Mutual Recognition ◽  
Case Law ◽  
The Other ◽  
Mutual Trust ◽  
The European Union ◽  
Court Of Justice ◽  
Other Hand ◽  
Case Basis

This article analyses the case law of the Court of Justice of the European Union (CJEU) on detention and the possible evolution of the understanding of mutual recognition stemming therefrom. In the Lanigan, JZ, and Ognyanov decisions, the CJEU assimilated mutual recognition with the effectiveness of cooperation, which should be understood as maximum compliance with the issuing state’s interests. Arguably, this approach is detrimental to other important values, such as, for example, the rights arising from excessively long detention and a rational and meaningful approach to the enforcement of imprisonment. On the other hand, the Aranyosi and Căldăraru judgment has detached mutual recognition from the exclusive protection of the issuing state and has turned it into a neutral governance principle. If mutual trust is not a given and can be assessed on a case-by-case basis through common objective parameters, the decisions deserving recognition may be uttered either by the issuing or the executing authority.

Sign in / Sign up

Export Citation Format

Share Document