scholarly journals A reexamination of conscience protections in healthcare

2013 ◽  
Vol 62 (6) ◽  
Author(s):  
Michael Arthur Vacca

Rispondendo ad un articolo di Lisa Harris, pubblicato su New England Journal of Medicine 2012; 367: 981-983, il presente contributo riesamina la coscienza da un punto di vista giuridico. Si analizza l’obiezione di coscienza nel contesto della legge federale statunitense sulla tutela della libertà religiosa e si spiega perché coloro che obiettano moralmente di eseguire aborti hanno il legittimo diritto all’obiezione di coscienza. Al contrario, si argomenta che gli abortisti non hanno diritto di eseguire aborti per ragioni di “coscienza”, perché il concetto giuridico di coscienza preclude l’intrusione nei diritti di altri, e nel caso dell’aborto, l’abortista va ad intromettersi nel diritto alla vita di un innocente, un essere umano non ancora nato. Il concetto giuridico di “coscienza” non può ignorare o respingere la conclusione scientifica ed empiricamente verificabile che la vita di un essere umano inizia al momento della fecondazione. Inoltre, è tracciata una distinzione tra diritti negativi e positivi nel contesto della legge federale statunitense, che rende ancor più insostenibile l’uso della “coscienza” come giustificazione per eseguire aborti. L’enfasi dell’articolo è sulla realtà oggettiva e i limiti della coscienza come concetto giuridico, affermando che, mentre la coscienza procede da un soggetto umano, non è pertanto arbitraria e quindi inutilizzabile come concetto giuridico. Riconoscendo i diversi approcci e le implicazioni derivanti dal concetto di coscienza, l’articolo mira semplicemente a difendere la coscienza come un concetto giuridico praticabile, radicato nella legge federale degli Stati Uniti e nella ragione umana. In questo modo, si prefigge di promuovere l’autentica libertà della persona umana a vivere secondo i dettami della propria coscienza. ---------- Responding to Dr. Lisa Harris’ article in the September 13, 2012 issue of the New England Journal of Medicine, this article reexamines conscience from a legal perspective. It analyzes conscientious objection in the context of U.S. federal law protecting religious freedom and explains why those who morally object to performing abortions have a legitimate right to conscientious objection. In contrast, the argument is made that abortionists have no such right to perform abortions for reasons of “conscience” because the legal concept of conscience precludes intruding upon the rights to others, and in the case of abortion, the abortionist is intruding upon the right to life of an innocent, unborn human being. The legal concept of “conscience” cannot ignore or dismiss the scientific and empirically verifiable conclusion that a human being comes into existence at the moment of fertilization. Furthermore, a distinction is drawn between negative and positive rights in the context of U.S. federal law which renders the use of “conscience” as a justification for performing abortions all the more untenable. The emphasis of the article is on the objective reality and limits of conscience as a legal concept, affirming that, while conscience proceeds from a human subject, it is not, therefore, arbitrary and thus unworkable as a legal concept. Recognizing the various approaches to and implications ensuing from the concept of conscience, the article simply aims to defend conscience as a workable legal concept rooted in U.S. federal law and human reason. In this way, it seeks to advance the authentic freedom of the human person to live in accordance with the dictates of his/her conscience.

2021 ◽  
Vol 41 (1) ◽  
pp. 15-33
Author(s):  
Ryszard Ficek

In the context of Cardinal Wyszyński’s personalistic concept, a man understood as a spiritual, as well as corporal being, created by God in His image and likeness, endowed with human dignity from the moment of conception, the subject of rights and duties appears as the focus of the Christian perception of culture. The analysis of contemporary cultural reality, then, carried out in the above article in the light of the Christian tradition allows us to express the discussed issues in terms of a vocation addressed to every human being. Its position to the realities of earthly life emphasizes that in the creative activity of culture, one should see the most appropriate way of realizing the fullness of the human personality not only in the temporal dimension but also in the supernatural one. Moreover, emphasizing such elements as the human person, family, Nation, state, the international community, culture, economy, and politics understood in an integral way, as well as the Church proclaiming the universal message of salvation, the Primate’s vision of culture exposes a praxeological character, rooted in particular human existence. It allows not only the direct inclusion of the human person in the current of civilization and cultural changes but also consents the human being to discover the right place in the dynamically changing contexts of the contemporary world.


2013 ◽  
Vol 62 (2) ◽  
Author(s):  
Carlo Casini ◽  
Marina Casini

Il contributo esamina la sentenza della Corte Suprema di Cassazione n. 14979 del 2013 che ha per tema l’obiezione di coscienza all’aborto. Nella fattispecie, un medico ginecologo viene pesantemente condannato per aver fatto valere il suo diritto di sollevare obiezione di coscienza (previsto dalla legge 194/1978) per attività che secondo i giudici non sono coperte dall’obiezione di coscienza. Nella prima parte dell’articolo, gli Autori muovono osservazioni critiche riguardo alla particolare severità della sentenza e riportano la ricostruzione dei fatti così come emerge dalle indagini giudiziarie. Di seguito concentrano l’attenzione sul significato e l’estensione del concetto di intervento medico- chirugico in generale e abortivo in particolare, osservando che nella misura in cui un’attività, sebbene non rientrante nel “nucleo” dell’intervento, è programmata dall’inizio come fase conclusiva (tanto che se non vi fosse la certezza di effettuarla, non potrebbe neanche iniziarsi l’intervento) tale attività è parte integrante dell’intervento stesso e dunque, trattandosi di aborto, coperta da obiezione di coscienza. Rilevante ai fini di questa valutazione è l’evidente nesso di causalità che tiene in un tutto unitario i vari momenti che si susseguono cronologicamente. La questione squisitamente giuridica della revoca immediata dell’obiezione viene risolta alla luce della differenza tra l’eventuale accettazione preventiva e l’esecuzione dell’ordine imprevisto. L’aspetto comunque più significativo è legato all’interrogativo che fa da cornice a tutto il contributo: perché tanta avversione contro l’obiezione di coscienza sanitaria con riferimento all’aborto? La risposta si trova nella negazione esplicita o implicita, ma anche nella semplice dimenticanza, che il figlio è figlio sin dal momento del concepimento. “Il diritto di aborto – si legge nella sentenza della Cassazione – è stato riconosciuto come ricompreso nella sfera di autodeterminazione della donna”. Questo pensiero, sottolineano gli Autori, è espressione di una deriva che, avviatasi con la sentenza costituzionale del 1975, avanzata con la legge 194/1978 e gravemente consolidatasi con la pretesa del “diritto” di aborto, nasce dal rifiuto di porre lo sguardo sul figlio concepito e, di conseguenza, avversa l’obiezione di coscienza. Per questo c’è ancor più bisogno di ripetere, concludono gi Autori, che il fondamento e la tutela dell’obiezione di coscienza dipendono dal riconoscimento che il concepito è uno di noi. Interessanti anche gli spunti giuridici di livello internazionale. ---------- The article examines the judgement of the Supreme Court of Cassation n. 14979 of 2013 about conscientious objection to abortion. In this case, a gynecologist was heavily condemned for having asserted his right to raise conscientious objection (provided by Law 194/1978) for activities that according to the judges are not covered by the conscientious objection. In the first part of the article, the Authors criticize the particular severity of the sentence and report the reconstruction of the events emerging from the judicial investigations. Afterward they focus attention on the meaning and the extension of the concept of surgical intervention to understand what the boundaries are of an abortion. Whether a final activity is planned from the outset (so that if it were not sure to perform it, the intervention should not be started) this activity is an integral part of the intervention itself and, therefore, in the case of abortion, covered by conscientious objection. For the purposes of this evaluation, the Authors write, it is very important the clear causal link that takes into a unified whole the various moments that follow one other chronologically. The purely legal question of immediate withdrawal of the objection is resolved in the light of the difference between the possible preventive acceptance of the execution and the execution of an unexpected order. The most significant aspect, however, is tied to the question that frames the entire contribution: why so much aversion against conscientious objection with regard to abortion? The answer lies in the express or implied negation – but also in the simple forgetfulness – that the child is a child from the moment of conception. “The right to abortion – it is written in the Supreme Court’s ruling – has been recognized as coming within the sphere of women’s self-determination” This thought, the Authors point out, is an expression of a drift originally triggered by the constitutional ruling of 1975, then advanced with the Law 194/1978 and finally severely consolidated with the claim of “right” to abortion. Since this drift arises from the refusal to look at the child conceived, consequently it adverse conscientious objection. For this there is even more need to repeat, the Authors conclude, that the foundation and the protection of conscientious objection depends on the recognition that the unborn is one of us. The legal references on the international level are also interesting.


Author(s):  
Nur Paikah

This research aims to analyze the process the role of government of human trafficking. Research was conducted at Bone Regency. Methods used the case study method by using a qualitative approach. The results showed human trafficking is one of the crimes against humanity, because this act has violated human rights, and the majority are victims of women and children. Referring to the Law that, every human being, especially women and children, has the right to live peacefully and properly as they should. Therefore, the right of life of every human being cannot be reduced by anyone and under any circumstances including not allowed to be traded, especially women and children. This is where the role of the government, especially the local government of Bone Regency, seeks to guarantee the protection of positive rights for them for their lives. In this case the local government of Bone Regency provides protection and prevention of human trafficking, especially women and children as a form of respect, recognition and protection of human rights is stated explicitly in Article 58 of Law Number 21 of 2007 concerning Crime of Trafficking in Persons.


2021 ◽  
Vol 15 (4) ◽  
pp. 731-742
Author(s):  
G. B. Dobretsov

Objective: to develop the “term” concept in the contract system legislation and to identify the features of terms calculation, taking into account the wording of the Federal Law “On the contract system in the field of procurement of goods, works, and services for state and municipal needs” of 02.07.2021.Methods: general scientific and specific scientific research methods are used in the work.Results: the legislation on the contract system does not register the “term” concept, but establishes it in all procedures and for all participants of the contract system. Terms violation entails administrative liability for both legal entities and officials. The entire logistics of procurement activities is connected with terms. As a result of the study, the following features related to terms in the contract system were identified: a) the terms calculation in the contract system in the field of procurement of goods, works, and services for state and municipal needs must be carried out in accordance with Chapter 11 of the Civil Code of the Russian Federation; b) Monday to Friday, except for federal official holidays, as well as other non-working days established by the authorities of the Russian Federation, should be considered working days; c) taking into account the high administrative responsibility for these offenses, if possible, to add to the established minimum and to subtract from the maximum period at least one day for unforeseen technical failures, in addition to the calculated period; d) in the legal structure “from the day following the day”, when establishing the maximum preventive terms in the law, to calculate the terms from the day of the event, the minimum preventive terms – from the day following the specified event; e) in some cases, as, for example, when concluding a contract, the customer should not only comply with all the terms of the formula “not more”, but also plan so that at the last stage there is no contradiction between “not more” and “not less”; f) the calculation of the terms provided by Law for the placement of electronic documents and information in the UIS starts from the moment they are placed in the UIS. Individual documents are placed in the UIS through the Treasury, the territorial body of which has the right to form notifications about the passage of control of these objects of control during the next working day. At that, the placement of control objects in the UIS will be carried out on the next working day from the date of their referral for control to the appropriate Treasury body.Scientific novelty: the article for the first time examines the norms and rules for calculating the terms stipulated in the Federal Law “On the contract system in the field of procurement of goods, works, and services for state and municipal needs” as amended on 02.07.2021, and analyzes regulatory legal acts in the field of procurement that come into force on January 1, 2022.Practical significance: the main provisions and conclusions of the article can be used in scientific, pedagogical and law enforcement activities when considering issues related to the calculation of terms in the field of procurement.


2005 ◽  
Vol 64 (1) ◽  
Author(s):  
Sabino Scardi ◽  
Luca Perazza

In the first volume of the New England Journal of Medicine of 1812, J. Warren published a paper on the subject of angina pectoris, in which clearly emerge the difficulties facing the physicians of that time in trying to formulate a correct diagnosis and prescribe the right therapy. We thought it would be certainly of interest to offer our readers an Italian translation of this article, obviously with some stylistic modifications and supplemented with information coming from other historical scientific works. William Heberden in his report on “ breast pain” was the first physician to use the term “angina” and the description of symptoms that he gave in 1772 is still today valid and correct.


2014 ◽  
Vol 2 (5) ◽  
pp. 219-223
Author(s):  
Елена Минина ◽  
Elena Minina

The article analyzes the concept of "vegetation" and its use in the current legislation, marks discussion points classification of individual objects to the vegetable world, identifies the main areas of regulation of protection and use of vegetation (except forests) at the moment, and highlighted the issue of the development of a special federal law on the protection of flora and its relationship with the Forest Code of the Russian Federation.


2020 ◽  
Vol 65 (1-2) ◽  
pp. 61-76
Author(s):  
Andreea-Iulia Someşan

"Advance planning aims at a time, considered specific for the life ending stages, when the patient will no longer be able to express his/her desire about the medical care performed on the own person. By the history of its introduction through the medical legislation, this document is closely related with the euthanasia concept or the right to put an end to the life that is no longer worth living. From a medical approach, this may suppose the withdrawal of the futile treatments. The patient has the possibility, by elaborating an advance directive, to mention his/her refusal for certain medical treatments and procedures. The purpose of its implementation in the clinical practice is to preserve the patient’s dignity and autonomy for the moment when he/she will no longer be able to express his/her will: this person can choose to end the suffering of an inhuman life. The patient will become, therefore, responsible for giving up to the futile medical care, limiting, in somehow, the actions of the medical staff. Thus, advance planning could be assimilated with the idea of medical non-compliance. The efforts of preserving the patient’s dignity will inevitably bring in our attention the concept of the human being’s value. Does an intrinsic value of the human being really exist or is it just built by the role played by the person in the social context? Is it fair to create moral pressure on someone to take a certain decision in that context? However, what if the advance directives were not at all associated with the idea of a Living will (Life testament – the Romanian name for this paper)? Even if the advance planning had the primary purpose to protect the healthcare professionals in their decision to withdraw the futile treatments, this document should be in favor of the patient and not against his/her deepest desires. Keywords: advance planning, dignity, autonomy, human being value, quality of life, life without dignity. "


2019 ◽  
Vol 1 (2) ◽  
pp. 99-117
Author(s):  
Yaroslav Reent ◽  
Nikolay Kiyko

The penitentiary service is a part of the state law enforcement system and its activities are related to the interests of society. In this case, the process of execution of criminal penalties may be accompanied with harm to law enforcement interests of persons detained in prisons. The practice of penitentiary services around the world shows that there are still cases of violations of the rights and freedoms of convicts. That is why special attention has been paid to the involvement of various social groups for monitoring the rights of convicts. In each individual state, the system of control over the activities of the penitentiary service varies depending on the social and state system, the type of legal system, and the level of development of democracy. At the same time, regardless of these factors, the control over the penitentiary service is expressed in the collection of information about the activities of penitentiary institutions, the detection of violations in their work, and at the final stage in the notification of the competent authorities about the violations, monitoring the elimination of violations and shortcomings, informing the public of the results of their work. Exercising control, most democratic states draw attention to the fact that prisons, as an important part of public life, must be information-based, open and democratic. The main task of monitoring should be to ensure compliance with generally accepted ethical standards in the execution of penalties related to isolation from society. So, according to the professor of the International center for prison studies at the University of London Vivien Stern: «The international community has said, and international law has also noted, that the whole process of depriving a human being of liberty from the moment of arrest to the moment of release from a correctional institution must be humane. Humane means ethical. Throughout this process, we must remember that a prisoner is a human being like us and has the right to have his or her human nature respected». The presented work is devoted to the description and analysis of legal regulation of public control over ensuring the rights of convicts in Russia and Belarus. The review reveals the actual problems of normative regulation activities of public control subjects, as well as provides a comparative legal analysis of the regulatory framework of Russia and Belarus in this area.


2018 ◽  
Vol 17 (1) ◽  
pp. 39-43 ◽  
Author(s):  
Heather Towery ◽  
Michael Hough

Purpose Digital transformation holds promise for addressing one of the biggest challenges in health care – misdiagnosis. About 30 per cent of health spending in 2009, i.e. roughly $750bn, was wasted on unnecessary services, excessive administrative costs, fraud and other problems. Moreover, inefficiencies cause needless suffering, states the Institute of Medicine. Leveraging emerging digital technologies in this sector stands to save thousands of lives and billions of dollars. Digital technology is being applied to this field owing to the great demand for a solution. Misdiagnosis is causing a major hemorrhaging hundreds of billions of dollars in the health industry – an estimated 10-20 per cent of cases are misdiagnosed, sometimes resulting in death or permanent disability, according to studies cited by the National Center for Policy Analysis. Additionally, experts believe as many as 31 per cent of all breast cancer cases are misdiagnosed, according to the New England Journal of Medicine, and 90,000 women are misdiagnosed with invasive breast cancer, according to Susan G. Komen. Design/methodology/approach Digital technology is being applied to this field owing to the great demand for a solution. Misdiagnosis is causing a major hemorrhaging hundreds of billions of dollars in the health industry – an estimated 10-20 percent of cases are misdiagnosed, sometimes resulting in death or permanent disability, according to studies cited by the National Center for Policy Analysis. Additionally, experts believe as many as 31 percent of all breast cancer cases are misdiagnosed, according to the New England Journal of Medicine, and 90,000 women are misdiagnosed with invasive breast cancer, according to Susan G. Komen. Findings Advance Medical’s experience is that 39 per cent of a self-selecting group of medical advocacy seekers are misdiagnosed. Directly related to this challenge, a major battleground where the war on escalating healthcare costs is being fought is in the space of utilization management tools, which help ensure insurers are paying for the right care. These tools depend on the doctor making the right diagnosis and that the treatment matches the diagnosis. But these tools are broken. Instead of checking accuracy of diagnosis (e.g. the right test was done and interpreted accurately), they are at best checking to see if the “box was checked” for any testing being done. The solution is to not only to ensure that the diagnosis is correct by having it reviewed independently but also to use technology to aid diagnosis and the physician’s overall job. Using tools such as patient portals and data management technology can aid doctors to not burn out from sorting through data but rather using healthcare technology to reduce physician exhaustion and thus misdiagnosis. Originality/value New and old tools hold promise for addressing one of the costliest and most able-to-be-impacted challenges in health care – misdiagnosis. Because of misdiagnosis, the health industry is hemorrhaging hundreds of billions of dollars and causing patients undue stress and negative medical impact. Not only does misdiagnosis have a strong effect on the economy and the solvency of the US health care system, it also has a profound effect on the people who are being misdiagnosed, as well as their families and loved ones.


2017 ◽  
Vol 2 (1) ◽  
pp. 189
Author(s):  
Matheus Macedo Lima Porto ◽  
Clara Cardoso Machado Jaborandy

<p><strong>RESUMO:</strong></p><p><span id="docs-internal-guid-be91bd97-6d94-fd9c-591a-562fe190c315"><span>O presente trabalho pretende analisar o tratamento jurídico da dignidade da pessoa humana a partir do constitucionalismo latino americano. Num primeiro momento, verificar-se-á a essência da dignidade humana para o direito através de uma rápida evolução conceitual com base na história e na filosofia. Num segundo momento, o artigo abordará o movimento do chamado novo constitucionalismo latino-americano, a fim de verificar as possibilidades de inserção da Constituição brasileira de 1988. Por fim, far-se-á uma análise crítica da forma que a dignidade da pessoa humana vem sendo interpretada no instituto denominado Estado de Coisas Inconstitucional, especialmente nas decisões da Corte Constitucional da Colômbia e do Supremo Tribunal Federal. O desfecho da investigação pretende comprovar que há um simbolismo na decisão que adota o Estado de coisas inconstitucional em prol do respeito à dignidade humana.</span></span></p><p><strong>ABSTRACT:</strong></p><p dir="ltr"><span>The present work is intended to analyze the legal treatment of the dignity of the human being from the Latin American constitutionalism. In the first instance, an essence of human dignity will be verified for the right through a rapid conceptual evolution based on history and philosophy. In a second moment, the article approaches the movement of the new Latin American constitutionalism, objecting to verificate the possibilities of insertion of the Brazilian Constitution of 1988. Finally, it will be done a critical analysis of the form that a dignity of the human person has been interpreted, especially in the decisions of Constitution Court of Colombia and the Supreme Court of Brazil. The outcome of the investigation is intended to prove that there is a symbolism in the decision that adopts the unconstitutional state of affairs in favor of respect for human dignity.</span></p><div><span><br /></span></div>


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