scholarly journals 知情同意臨床實踐中倫理學技術研究

2002 ◽  
Vol 4 (2) ◽  
pp. 38-48
Author(s):  
Guobin CHENG
Keyword(s):  
Clinical Practice ◽  
Informed Consent ◽  
Logical Consequence ◽  
Field Research ◽  
Fundamental Rights ◽  
Self Determination ◽  
Cultural Traditions ◽  
Digital Commons ◽  
The Right ◽  
Theoretical Issues

LANGUAGE NOTE | Document text in Chinese; abstract also in English.具體實踐中的知情同意是一種倫理學技術，注重利用現有的文化傳統、理論資源和法律工具，合理有效地分析問題、解決問題，強調它作為體現對病人基本權利的尊重和調節醫患關係手段的作用。在民主社會，知情同意乃是建立醫患權責餘的必要條件。知情同意來自於醫療活動的自發秩序：醫患雙方通過知情同意活動，明確醫療活動中雙方的權利和責任界限，進行有成效的醫療實踐。知情同意既是對基本人權的尊重，又是確保雙方責任的工具。具體實踐中的知情同意，提供一種促進多種價值觀和平共存、通過學習和對話實現平衡的運行機制，在社會整體利益優先與個人最基本權利不可侵犯的框架下滿足雙方不同的價值需求。臨床“知情同意”活動的目的在於：促進患者自主權的行使；明晰醫療活動中的權責關係，在合法限度內為醫療活動的正常進行提供保護。實踐中追求資訊的“充分”取決於患方要求的“主觀的充分”。臨床醫療活動中，醫方要不斷提高患方知情的充分程度。隨著知情程度的增加，患方自主程度隨之自動上升。目前關於“知情向意”的理論研究中，缺少對知情同意的狀況、分佈及相關因素的實地調查和量化分析，研究多集中在道德、文化理論上，實踐策略的指導意義不強。應當把知情同意視作貫穿於整個臨床醫療活動的一個連續的整體。要關注本社區成員的文化和心理結構的特殊性，從本社區歷史特點出發，建立本社區知情同意情況的常規模式和量化標準。還應當設計臨床知情同意調查制度，作為醫方制定知情同意策略的依據，同時又可作為說明醫療活動發生的真實過程的法律檔。Informed consent is an ethical technique which emphasizes using the existing cultural traditions, theoretical resources and legal instruments to analyze and solve the problems reasonably and effectively. Informed consent can thus play a significant role in adjusting the relationship between patients and physicians. As an ethical technique, it focuses on the method of applying various ethical resources and not simply on the combination of the logical consequence and criteria. In a democratic society, informed consent is a necessary requirement for the right-duty relationship between patients and physicians. Informed consent is seen as a prerequisite obligation to physicians and implies certain rights for patients. Patients and physicians are bound by informed consent so that they are able to "trade" equally. Informed consent is not only a means to confirming the property rights but also a tool of reducing the costs of "trade". In practice, informed consent helps to promote and achieve the peaceful co-existence of pluralistic values. It can do so by learning and having conversations with the other sides so that different parties can satisfy under the framework which gives priority to the total interests of society and guarantees the fundamental rights of individuals.The aims of informed consent in clinical practice are to promote the self-determination of patients and to clarify rights and duties in medical activities. In practice, the sufficiency of information depends on the subjective sufficiency of patients. Physicians should ensure that the patient comprehend the information and follow the appropriate procedure to manage and supervise. The most active method for physician to take is to increase the degree of informational sufficiency. The degree of the patient's self-determination increases accordingly with the increase of informational sufficiency. Their relationship can be described by a curve like "S".The current studies on informed consent in China lack the empirical data from field research. Most studies focus on the theoretical issues of morality and culture. As a result, research results are hardly applicable in clinical practice. Informed consent should a holistic entity in clinical practice. We should pay more attention to the specificity of the cultural and psychological structure of members of every community. We should establish the ordinary model and criteria of informed consent in the particular community. We should also design an applicable and legally-bond system of informed consent to regulate clinical practice.DOWNLOAD HISTORY | This article has been downloaded 13 times in Digital Commons before migrating into this platform.

Consenso informato, autodeterminazione e libertÀ nella giurisprudenza

2012 ◽  
pp. 137-160
Author(s):  
Amedeo Santosuosso ◽  
Valentina Sellaroli
Keyword(s):  
Informed Consent ◽  
Cultural Context ◽  
Fundamental Rights ◽  
Self Determination ◽  
Historical Period ◽  
Individual Liberty ◽  
Legal Perspective ◽  
The Right ◽  
The Relationship ◽  
Conceptual Core

In recent decades informed consent has become simply the expression of the fundamental rights of individuals despite the fact that some signs of its ambiguous nature still remain. This means that the idea of informed consent is very much influenced by external values, by the specific cultural context or by the laws in force in a certain historical period. The great amount of national and international legal references lead us to believe that, in this matter, there is a common constitutional sense, whose conceptual core is shared by the whole society and which consists of fundamental rights to self determination and to health as defined thanks to recent medical and scientific innovations. In this contribution, we shall address issues relating to individual liberty rights, examine a number of Italian and European judicial decisions concerning the right to life and self determination and consider the relationship between civil and criminal principles in matters of self determination in the light of constitutional principles deriving from the conclusion that the concept of individual from a legal perspective differs from the concept of individual from a biological perspective and that the biological boundary itself of any individual may be modified in several personal ways.

scholarly journals Evolving Legal Protections for Indigenous Peoples in Africa: Some Post-UNDRIP Reflections

2018 ◽  
Vol 26 (3) ◽  
pp. 339-365
Author(s):  
Derek Inman ◽  
Dorothée Cambou ◽  
Stefaan Smis
Keyword(s):  
Human Rights ◽  
Informed Consent ◽  
Indigenous Peoples ◽  
Regional Level ◽  
Self Determination ◽  
African Continent ◽  
African Context ◽  
United Nations Declaration ◽  
Human Rights Norms ◽  
The Right

Prior to the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) many African states held a unified and seemingly hostile position towards the UNDRIP exemplified by the concerns outlined in the African Group's Draft Aide Memoire. In order to gain a better understanding of the protections offered to indigenous peoples on the African continent, it is necessary to examine the concerns raised in the aforementioned Draft Aide Memoire and highlight how these concerns have been addressed at the regional level, effectively changing how the human rights norms contained within the UNDRIP are seen, understood and interpreted in the African context. The purpose of this article is to do just that: to examine in particular how the issue of defining indigenous peoples has been tackled on the African continent, how the right to self-determination has unfolded for indigenous peoples in Africa and how indigenous peoples' right to free, prior and informed consent has been interpreted at the regional level.

Solidarity

2021 ◽  
pp. 327-340
Author(s):  
William A. Schabas
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
The Other ◽  
Self Determination ◽  
Third Generation ◽  
Human Rights Law ◽  
Healthy Environment ◽  
Right To Development ◽  
The Right ◽  
Collective Dimension

Some fundamental rights, variously described as ‘solidarity rights’, ‘people’s rights’ or ‘third generation rights’ are not fully reflected in the human rights instruments. Indeed their place within human rights law remains somewhat controversial although that does not imply that they are not customary in nature. Among them are the right to peace, the right to a healthy environment, the right of peoples to self determination, and the right to development. The main distinction between these rights and other human rights relates to the jurisdiction of human rights bodies. They have a collective dimension that is not present in the same way with the other categories of human rights.

“De-gendering” the civil status? A public law problem

2020 ◽  
Vol 18 (2) ◽  
pp. 471-475
Author(s):  
Stefano Osella
Keyword(s):  
Public Law ◽  
Fundamental Rights ◽  
Self Determination ◽  
Gender Recognition ◽  
Public Interests ◽  
Men And Women ◽  
Easy Task ◽  
Civil Status ◽  
Gender Categories ◽  
The Right

Abstract This article raises the problem of the inclusion of gender in the civil status of the person and argues that public lawyers are now called on to understand whether a genderless civil status is constitutionally permissible and desirable. Admittedly, this is not an easy task. Gender categories are deeply rooted in our legal systems. Arguably, they may prove necessary for the achievement of constitutionally grounded public interests and protect fundamental rights, such as equality between men and women. The task that public lawyers are faced with is further complicated by the affirmation of the right to gender recognition based on self-determination, and the inclusion of nonbinary genders in the law. These developments are indeed profoundly transforming the way in which gender is registered and controlled. Importantly, they put in doubt the effectiveness of gender as a criterion of legal categorization.

scholarly journals The Influence of Political Economy on the “Self-Determination of Peoples”

2017 ◽  
Author(s):  
Yavuz Çilliler
Keyword(s):  
Political Economy ◽  
World War Ii ◽  
Field Research ◽  
State Level ◽  
Comparison Method ◽  
Self Determination ◽  
Theoretical Development ◽  
Historical Comparison ◽  
The People ◽  
The Right

The right of peoples to "self-determination” is influenced by varying motives in different times and geographies in its implementation, and is rarely operated according to its foundational ethic and legal bases dating back to the Kantian concept of free will and the international laws codified after the World War II. Particularly, political economy has always played an important but usually covered role in the application of this principle to national or international disputes. This paper aims to explain the dominance of political economy in international decision making processes about the people making a claim for their own state, and to highlight the changing nature of political economy supporting sometimes the sovereign states and sometimes the sub-state level ethnic groups. In this context, the theoretical development and the application of “self-determination” principle is assessed relatively by historical comparison method. Field research for the study comprises archival research of primary and secondary resources. This paper concludes that the political economy has usually greater influence on the application of “self-determination” to the national and international disputes than its ethic and legal content, and that the paradoxical content of this principle contributes to the redistribution of lands usually in compliance with the interests of great powers.

Part II Group Identity, Self-Determination, and Relations with States, Ch.9 Free, Prior, and Informed Consent in the UNDRIP: Articles 10, 19, 29(2), and 32(2)

2018 ◽  
Author(s):  
Barelli Mauro
Keyword(s):  
Informed Consent ◽  
Indigenous People ◽  
Indigenous Peoples ◽  
Group Identity ◽  
Good Faith ◽  
Self Determination ◽  
Fundamental Aspect ◽  
Cultural Group ◽  
Effective Protection ◽  
The Right

This chapter addresses the norm of free, prior, and informed consent (FPIC) found in Articles 10, 19, 29(2), and 32(2). The rights to participation and consultation are crucial to guarantee the effective protection of the rights and interests of any ethno-cultural group, and represent a fundamental aspect of modern democratic societies. Accordingly, FPIC reinforces significantly the provisions of the Declaration dealing with participatory rights, and specifically those concerning the right of indigenous peoples to be consulted with regard to matters affecting them. At a minimum, FPIC requires that the relevant consultations should not be a mere formality, but, rather, should be conducted in good faith and with the objective of finding a common agreement. However, FPIC may also be understood in a more radical manner, namely one requesting that certain measures or projects should not be implemented in the absence of the consent of the indigenous people concerned.

Part Three Protection and Solutions, VI Focusing on Specific Rights

2020 ◽  
Author(s):  
Albanese Francesca P ◽  
Takkenberg Lex
Keyword(s):  
International Law ◽  
Fundamental Rights ◽  
Self Determination ◽  
Humanitarian Law ◽  
Human Beings ◽  
Mena Region ◽  
Cultural Economic ◽  
Palestinian Refugees ◽  
The Right

This chapter focuses on a number of specific rights and entitlements of Palestinian refugees under international law, including the rights to self-determination, return, and compensation, as well as a number of civic, cultural, economic, political, and social rights, relevant because of the protracted nature of Palestinians’ exile and the main vulnerabilities to protection threats, as discussed in Part II. Despite being firmly established in international law, and being reaffirmed multiple times by the United Nations, both the right to self-determination of the Palestinian people, and the right to return and compensation of the refugees, remain unmet. This is largely because of the lack of a solution in accordance with international law. The chapter argues that recognizing other fundamental rights of the Palestinians as refugees, stateless persons, and/or protected persons under international humanitarian law, and above all, as human beings, does not undermine the right to return and rather helps ensure human dignity while a just and lasting solution remains pending. These rights remain an important benchmark for assessing the treatment of Palestinian refugees in the MENA region and beyond, for as long as the more fundamental rights to self-determination, return, restitution, and compensation remain unrealized.

scholarly journals 臨床知情同意在中國的一些實踐及反思

2013 ◽  
Vol 11 (1) ◽  
pp. 21-32
Author(s):  
Wenqing ZHAO
Keyword(s):  
Clinical Practice ◽  
Informed Consent ◽  
Individual Autonomy ◽  
Clinical Practices ◽  
Empirical Reality ◽  
Medical Practitioners ◽  
Republic Of China ◽  
Institutional Settings ◽  
Digital Commons ◽  
History Of

LANGUAGE NOTE | Document text in Chinese; abstract also in English.“患者利益至上”知情同意是當代西方生命倫理學的一個核心概念，在規範臨床醫療實踐中的應用十分廣泛，相關的法規和指引更是層出不窮。隨著自由主義理論和權利觀念在全世界範圍內的流行，中國也開始注意到知情同意原則在臨床實踐中的重要意義，並逐步引入西方的相關規範。然而，大部分規範的制定缺乏對知情同意倫理基礎的考察，對臨床知情同意在中國的實踐也沒有足夠的關注。本文分析作為知情同意的道德基礎，並通過對一線醫務工作人員的訪談，了解臨床知情在中國實踐情況及限制，希望能為相關規範的制定提供一些思路。Informed consent is considered to be one of the most important conceptual developments in contemporary bioethics, and is strongly implicated in the regulation of clinical practices in the West. Over the past decade, the growing prevalence of both liberal arguments supporting individual autonomy and rights-based debates focusing on equality has brought the concept of informed consent into the purview of Chinese legislation pertaining to healthcare and clinical practice. However, most of the laws and regulations are made by Chinese authorities in ignorance of the concept’s ethical groundings. In addition, lawmakers have not taken into account the empirical reality and specific situations of clinical practice in contemporary China. This essay contends that the history of informed consent legislation in China since 1994, exemplified by the recently adopted Article 55 of the Tort Law of the People’s Republic of China, reveals conflicting understandings of the ethical foundation of the notion of informed consent. The essay also presents extensive interviews conducted by the author with four frontline medical practitioners in first-tier cities that demonstrate how their experiences with informed consent are largely shaped by current institutional settings and influenced by traditional Confucian ethical norms, (e.g., an emphasis on interdependence among family members, which requires the doctor to consult with the family rather than the patient). The essay concludes that we must take into serious consideration the Chinese ethical tradition and its unique application in practice when cross-fertilizing the concept of informed consent.DOWNLOAD HISTORY | This article has been downloaded 116 times in Digital Commons before migrating into this platform.

Loyalitätsobliegenheiten und Grundrechte

2021 ◽  
Author(s):  
Kai Morgenbrodt
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Self Determination ◽  
Religious Communities ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Labour Standards ◽  
The Right ◽  
Fair Balance

This thesis analyses dismissals of church employees from a European perspective. Based on ECHR and EU law, the author develops an approach that balances the right of self-determination of religious communities with the fundamental rights of employees. At the heart of this approach sits the function of the employee in the employer’s religious sending. Against this background, the German Constitutional Court’s case law is challenged. It fails to strike a fair balance between the conflicting constitutional interests. Moreover, it structurally fosters discrimination, undercuts the minimum level of human rights protection and offers inadequate solutions for labour standards in religious communities in times of a religiously pluralised society.

scholarly journals De Facto States and Democracy: The Case of Abkhazia

2016 ◽  
Vol 32 (32) ◽  
pp. 85-104 ◽  
Author(s):  
Vincenc Kopeček ◽  
Tomáš Hoch ◽  
Vladimír Baar
Keyword(s):  
International System ◽  
Field Research ◽  
Self Determination ◽  
Democracy Promotion ◽  
The Past ◽  
Historical Continuity ◽  
Democratic State ◽  
De Facto States ◽  
The Right

Abstract De-facto states constitute an interesting and important anomaly in the international system of sovereign states. No matter how successful and efficient in the administration of their territories they are, they fail to achieve international recognition. In the past, their claims for independence were based primarily on the right to national self-determination, historical continuity and claim for a remedial right to secession, based on alleged human-rights violations. Since 2005, official representatives of several de facto states have repeatedly emphasised the importance of democracy promotion in their political entities. A possible explanation of this phenomenon dwells in the belief that those states which have demonstrated their economic viability and promote the organization of a democratic state should gain their sovereignty. This article demonstrates the so called “democracy-for-recognition strategy” in the case study of Abkhazia. On the basis of the field research in Abkhazia we identify factors that promote, as well as those that obstruct the democratisation process in the country.

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