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 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.

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.

scholarly journals The Horizontal Effects of Charter Rights Given Expression to in EU Legislation, from Mangold to Bauer

2019 ◽  
Vol 12 (2) ◽  
pp. 185-215
Author(s):  
Elise Muir
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Special Issue ◽  
Max Planck ◽  
Eu Legislation ◽  
Scope Of Application ◽  
Effective Remedy ◽  
The Right ◽  
The Relationship ◽  
Eu Fundamental Rights

This paper investigates the relationship between legislative provisions and fundamental rights by analyzing the Egenberger, IR, Bauer, Max-Planck and Cresco cases. This paper understands these cases as an invitation to reflect on whether, and if so, to what extent, EU fundamental rights' legislation, read in conjunction with the Charter, could have an impact on the scope of application, substance and/or legal effects of the Charter. This paper argues that the Court of Justice's recent case law can be understood as allowing for EU legislative guidance on fundamental rights to interact in an upward process with the rights enshrined in norms with the same rank as EU primary law. This paper sheds light on the constitutional implications of the overlaps between legislation and constitutional norms on fundamental norms while other contributions in this special issue address effectiveness and the right to an effective remedy in a broader sense.

Consenso informato. Una riflessione filosofico-giuridica sul tema

2012 ◽  
pp. 17-41
Author(s):  
Patrizia Borsellino
Keyword(s):  
Informed Consent ◽  
Self Determination ◽  
Historical Period ◽  
Human Beings ◽  
Physician Patient Relationship ◽  
Critical Areas ◽  
Current State ◽  
Common Goals ◽  
Individual Self ◽  
Physician Patient

The paper frames the issue from the philosophy of law's viewpoint to determine the current "state of health" of informed consent starting from some critical areas (like the physician-patient relationship, illnesses with poor prognosis and the endof life medical care, genetics, clinical research and practice) and from its legal sources (like judicial decisions). The author's claim is that informed consent does not need to be weakened in this historical period in order to strenghten solidarity and trust to achieve common goals for all human beings. Instead, she aims at proving that trust and solidarity should be placed in a participatory and cooperative scenario which should be fed by the respect, at the highest levels, of individual self-determination, and therefore of informed consent.

L'autodeterminazione alle cure tra limiti di validitÀ e tutela risarcitoria

2012 ◽  
pp. 42-67
Author(s):  
Luigi Balestra ◽  
Riccardo Campione
Keyword(s):  
Advance Directives ◽  
The Self ◽  
Self Determination ◽  
Medical Treatments ◽  
Life Saving ◽  
The Right ◽  
The Relationship ◽  
Right Of Self Determination

The essay analyzes the development of the right of self-determination in medical treatments and the changes it has had on the relationship between doctor and patient. In this perspective, the paper aims, in particular, to verify the limits of the self-determination principle in cases of refusal of life-saving treatment and in the hypothesis of advance directives. It also analyzes the possibility of providing compensation for damages in case the right to self-determination is undermined.

„PACIJENTOVO PISMO“ KAO PRAVNI OSNOV ZA PRIMENU PASIVNE EUTANAZIJE

2021 ◽  
pp. 211-229
Author(s):  
Aleksandra Pavićević ◽  
Keyword(s):  
Living Will ◽  
Self Determination ◽  
Foreign Countries ◽  
Prolongation Of Life ◽  
The Subject ◽  
Constitutional Right ◽  
The Right ◽  
The Relationship ◽  
Domestic Law ◽  
Dying Patient

The subject of the paper is the relationship between the duties of physicians and other medical professionals towards the dying patient (as a provider of medical services) and the patient's right to personal choice and preservation of his own right to self-determination in relation to body and life, which is a special subjective civil right. The author discusses the legal-medical (but also ethical) issue of the patient's ability to freely decide not to agree to a medical measure of artificial prolongation of life or suspension of already started measures. The issue is examining the limits of the so-called permissibility of “passive euthanasia”, which is indirectly recognized in domestic law by the Law on Patients' Rights and the legal basis for its application in one particular modality, the so-called "Patient letter" (living will) which is an established legal instrument in some foreign legislation and practice. Analyzing the experience of some foreign countries, the author supports the introduction of such an institute - as a kind of anticipated directives in domestic law, referring to the patient's constitutional right to self-determination, which embodies the supreme good, even more valuable than (unwanted) life. Such a solution is in line with the principle of human will autonomy, freedom to dispose of life as a personal good, and potentially a reflection of the so-called "the right to die", which is the reverse of the right to life

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.

The Uncomfortable Balance between a Minority and a People: The Global/Local Disconnect

2017 ◽  
Vol 24 (3) ◽  
pp. 254-272
Author(s):  
Parvathi Menon
Keyword(s):  
International Law ◽  
Personal Characteristic ◽  
Minority Rights ◽  
Self Determination ◽  
Minority Protection ◽  
Political Processes ◽  
Minority Identity ◽  
The Right ◽  
The Relationship

The legitimacy of secessionist movements has emerged as an important debate, while the protection of minorities within a democracy has become merely of peripheral interest to international law. My project suggests that the advent of universalized (minority) rights re-conceptualized the majority-minority relationship and its balance, reducing the possibilities of political processes to balance the relationship. What was construed as a redress for dichotomous relationships between the oppressor and the oppressed through (the right to) self-determination, became a discourse between minority (identity) rights and a democratic entitlement, post-colonially. These norms universalized a demand to rethink minority protection, no longer from the perspective of advantaged and disadvantaged; rather, to introduce perspectives of individuals polarized around a personal characteristic in their identity thus establishing/reinforcing the inferiority of their identity within the hierarchy.

scholarly journals The right to paid annual leave as an EU fundamental social right. Comment on Bauer et al.: Joined Cases C-569/16 and C-570/16 Stadt Wuppertal v. Maria Elisabeth Bauer and Volker Willmeroth v. Martina Broßonn, EU:C:2018:871

2019 ◽  
Vol 26 (3) ◽  
pp. 441-448
Author(s):  
Maria Antonia Panascì
Keyword(s):  
European Union ◽  
Case Note ◽  
Fundamental Rights ◽  
The European Union ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
Scope Of Application ◽  
The Right ◽  
The Relationship ◽  
Horizontal Direct Effect

This case note examines the judgment of Court of Justice of the European Union delivered in Joined Cases C-569/16 and C-570/16 Stadt Wuppertal v. Maria Elisabeth Bauer and Volker Willmeroth v. Martina Broßonn on 6 November 2018. It engages with the noteworthy aspects of the ruling, such as the horizontal direct effect of the Charter of Fundamental Rights of the European Union (the Charter), the relationship between primary and secondary law in the European Union legal order and the scope of application of the Charter.

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