Medicine and law (Med Law )

Publisher: World Association for Medical Law


Medicine and Law is an international publication dealing with medico legal issues. Articles, court decisions, and legislation on: Medical Law, forensic medicine, sexology and law, psychiatry and law, psychology and law, dentistry and law, nursing law, pharmaceutical law, medical ethics, clinical criminology, drugs, alcohol, child abuse, medical experimentation, genetic engineering, organ transplantation, abortion, contraception, sterilization, euthanasia, religion, AIDS, etc.

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Publications in this journal

  • [Show abstract] [Hide abstract]
    ABSTRACT: The traditional approach towards end-of-life decision-making in Italy has changed. Whilst article 32 of the Italian Constitution recognizes the 'right to health' that grants patients to withhold or withdraw medical treatment, the Italian Medical Ethics Code neglects any kind of assistance during death or euthanasia. Although norms seem clear, ethicists and lawyers continue to discuss if withdrawing treatment from an incompetent patient should be classified as immoral and/or illegal. This is the result of acceptance of concepts such as patient's autonomy and the "right to die". On one hand, ethicist and lawyers, valuing the patient's autonomy, believe that letting die cannot be punished. On the other hand, however, some conservative ethicists and lawyers argue that the right to life is absolute and imperative and therefore a physician must do everything possible to protect one's life.
    Medicine and law 12/2013; 32(4):577-85.
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    ABSTRACT: I will problematize medical performances at the end of life, confronting them with the responses of Portuguese Criminal Law. By starting from a review of literature, both in Portugal and abroad, I will cross the criminal doctrine with a broader, interdisciplinary approach, including the reconsideration of medicine ethical tradition (notably the Hippocratic Writings) and the present developments in neurosciences. The frame of homeostasis (neurobiology of emotions) by Damisio, with compassion in the top, helps to clarify to which extent medical act according to legesart is becomes the centre of the problem. Indeed, it is within the medical act, understood as the meeting of two autonomies--patient's and doctor's autonomies--that the compassion takes place as a result of the agreement/compromise between the patient's will of ceasing her/his life in a situation of unbearable suffering and the doctor's duty to relieve that suffering. Compassion arises here as a "homeostasis instrument", that is, an emotion which is important in the regulation of life, even when we are speaking about end(ing) of life. This new perspective allows us to guess a shift of paradigm on the ethical and social levels. On the other hand, in so far as we have passed from the compassionate response in medical setting to its discussion, successively, in medical ethics, in the courts, and as a normative instrument, I claim that we are before the "transition from an automatic homeostasis to a deliberate homeostasis" (Damisio). Therefore, 1 seek for a balance between the spontaneous and the planned, concerning the issue of praxis. Indeed, what increasingly happens in medical praxis should be brought together with theory, whereby medical law has a word to say.
    Medicine and law 12/2013; 32(4):567-76.
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    ABSTRACT: The article describes the recent Portuguese Act of 16 July 2012 on Living wills and Health care proxy, in a comparative perspective. After six years of parliamentary debate, the law was approved by unanimity and provides binding advance declaration of will, as long as it respects strict procedural control (Notary control, non-compulsory medical information and a (declarative) National Registry of Advance Declarations). The Author considers the Law a step forward in the right direction for the promotion of health care planning and ageing, especially for people suffering from dementia, and the autonomy of the patient in the end-of-life.
    Medicine and law 12/2013; 32(4):497-502.
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    ABSTRACT: Society is changing at an unprecedented rate. Several areas of knowledge are evolving on a daily basis, namely medicine and connected sciences. Hence it is needed that the legislator walks at least right behind this evolution, in order not to be considered retrograde. One of the areas that need the constant attention of the legislator is medicine, as far as prolonging life is considered. We have witnessed several cases along the decades of people who are not living a long and healthy life, but rather just a long life, with little quality in it. Therefore, it is also known that issues such as euthanasia have been discussed at several levels. Criminal law, in most countries, namely in Portugal, does not admit any type of euthanasia. We will briefly analyse the two Articles in the Portuguese Penal Code concerning this matter, in order to come to the conclusion of its pertinence and adequacy to today's society.
    Medicine and law 12/2013; 32(4):525-39.
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    ABSTRACT: Advance directives emerge in the doctor-patient relationship as a way to ensure that the autonomy of the patient is observed, prior to a potential state of incapacity. Thus, autonomy can be exercised ensuring patient's dignity and self-determination. Advance directives yet have the power to drive the medical practitioner and his staff so that it is given the treatment and care previously chosen by the patient. The main purpose of this paper is to show the lack of legislation on the matter in Brazil versus the recognition of Advance Directives by the Brazilian Federal Council of Medicine. Can a mere resolution of the Council transform directives into enforceable wishes? This is an answer we intend to offer throughout the text.
    Medicine and law 12/2013; 32(4):515-23.
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    ABSTRACT: By ratification of the Convention on Human Rights and Biomedicine, previously expressed wishes as a completely new institute have been, via Article 9, implemented in the Czech legal system. With no history of practical experience with previously expressed wishes, and after more than 6 years of legislative work on the new Act on Healthcare Service, a unique provision was enacted which is actually not meant to serve as an instrument enabling withdrawal of the mechanical support of vital functions. In this paper, the great paradox of the Czech legal provision on previously expressed wishes is to be discussed and critically analyzed in order to explain the seriousness of the consequences of initial misunderstanding of the purposes and context of previously expressed wishes.
    Medicine and law 12/2013; 32(4):429-40.
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    ABSTRACT: This article seeks to outline the law relating to euthanasia and assisted-suicide in New Zealand, and to critically examine whether there are any practical justifications for retaining the current prohibition. The paper initially discusses terminology, then what is and what is not permissible in New Zealand under the present legal regime. The paper then very briefly reviews the other jurisdictions which have euthanasia or assisted-suicide laws. Finally, the paper looks at the practical arguments for and against reform.
    Medicine and law 12/2013; 32(4):503-13.
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    ABSTRACT: This paper aims to discuss the development of the notion that the patient has the right to refuse treatment, and how the Brazilian legal system is dealing with bioethical dilemmas, such as the possibility of exercising autonomy through advance directives. The paper discusses the lack of legislation to regulate important issues in the end of life healthcare, and what ethical guidelines exist, providing physicians with ethical and legal parameters to deal with the patient's will.
    Medicine and law 12/2013; 32(4):459-80.
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    ABSTRACT: This article discusses who can write a valid advanced directive by analyzing the classical theory of disabilities and the introduction of the criterion of judgment in civil law. In the search for the answer of the proposed problem, this article examines how countries that have legislated on the AD deals with it and, such as Brazil, which still has no legislation on policies can advance the issue, equalizing the age criterion with the personality rights of considered incapable.
    Medicine and law 12/2013; 32(4):541-8.
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    ABSTRACT: Physician's attitudes towards patients with incurable cancer or at the end-of-life process--treatment of patients, withholding ventilation support, physician-assisted suicide--have changed rapidly in recent years. In cases such as incurable cancer, illnesses in the terminal phase, some neurologic diseases and AIDS, physicians and other health care workers experience dilemmas, arguments and problems on the subjects of whether or not to tell the truth or how to do it, who should inform the patient or his/her guardian, and then, how to give treatment to patients with incurable cancer or withhold ventilation support. All of these issues are affected by the country's' sociocultural and economic structures, the physician's attitudes at the end of life,the medical practice and the form of health structures. In this study our objectives are to assess physicians' views in Turkey regarding the process of the end of life and decision-making, to compare them with views from the USA, Japan and Saudi Arabia and to cristalize a cross-cultural assessment. Our study contains three clinical situations covering the following areas: (1) a patient's right to be informed of incurable cancer, (2) doctor-assisted suicide (3) the conflicting rights of patients, doctors and the family in issues such as refusing ventilatory support or witholding treatment. The four-point Likert Scale was used to mark the responses to the statements. The significant cultural, social and economic differences that exist in health care services between regions in our country affect physician-patient communication and end of life decision-making, as reflected in the process of obtaining informed consent.
    Medicine and law 12/2013; 32(4):549-65.
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    ABSTRACT: The U.N. Convention on the Rights of Persons with Disabilities recognizes as the first of its general principles the "Respect for inherent dignity, individual autonomy including the freedom to make one's own choice, and independence of persons" (Art.3.a). With regard to health, States Parties recognize that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without being discriminated on the basis of disability (Article 25), which includes requiring health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent (subsection d).These guidelines must enlighten the interpretation of the Spanish legal system as for the scope of autonomy of people with disabilities. Nevertheless, they still bear some handicaps in order to preserve their autonomy from third-party interferences.
    Medicine and law 12/2013; 32(4):601-12.
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    ABSTRACT: Does a valid cause of action exist against a health care provider who intentionally disregards a "do-not resuscitate order," prolonging a patient's life? Wrongful prolongation of life has not gained traction in the United States. Although the issue has garnered media attention and has raised awareness of advanced directives, physicians still may disregard a patient's last wishes for fear of legal reprisal or due to lack of communication. This article examines key cases and explains the differences between living wills, advanced directives and proxies. Claims have been advanced under theories of battery, Constitutional violations, breach of contract, infliction of emotional distress, and negligence, but no cause of action has allowed monetary damages. Courts maintain that it is not their place to judge an impaired life as being less valuable than no life. A state-by-state analysis of legislation concerning advanced directives follows along with a discussion of the Patient Self-Determination Act.
    Medicine and law 12/2013; 32(4):441-58.
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    ABSTRACT: There are currently high profile debates about legal and ethical aspects of end of life care and treatment in the U.K. and Brazil. Unlike some other jurisdictions, neither country has legalised assisted dying or euthanasia. We argue that it is timely to consider the issues from the perspectives of an evolving concept in bioethics, that of solidarity.
    Medicine and law 12/2013; 32(4):481-96.
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    ABSTRACT: The Ethics Committee at the Patient's Bedside (ECatPB) was established at Beilinson Hospital and began its activity a few years ago. A retrospective viewpoint will enable us to reflect on moral dilemmas and ethical conflicts as sources of professionals' moral distress. The activities of the ECatPB will be reviewed through sample cases and in the light of the promotion of optimal treatment. Five dominant contributions of the ECatPB will be discussed: prevention of moral distress; positioning the committee as an integral and inseparable component of the medical institution's daily life; cultivating the advisory, rather than punitive, character of the committee; maintaining constant ethics dialogues with patients, caregivers and professionals; and communications with guardians in light of informed consent or informed refusal. The summary ofthis paper will include conclusions, recommendations and personal notes.
    Medicine and law 09/2013; 32(3):277-85.
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    ABSTRACT: This article describes the pedagogical and ethical problems that ensue when ethical neutrality is mandated as the sole acceptable stance for teachers of ethics and health professionals (especially in public institutions). This paper argues that such a mandate can (1) violate public employees' own ethical integrity by forcing them to adopt the current legal order as their own ethical code; (2) erode trust, by requiring that the professional or teacher betray the honesty that patients and students commonly expect; and, finally, (3) undermine--by affirming that all opinions are equally acceptable--he pedagogical aim of generating critical thinking. Nevertheless, the article warns teachers and professionals against defending their own convictions by appealing to authority or the power of public office. The correct way to avoid ethical neutrality, this article asserts, is by distinguishing "opinion" from "argument": by not merely articulating, but providing convincing arguments for, one's own professional ethical opinions.
    Medicine and law 09/2013; 32(3):305-18.
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    ABSTRACT: The forensic psychiatric expert's assessment of torture survivors who manifest Post Traumatic Stress Disorder and apply for refugee asylum is a paradigmatic example of the interface of psychiatry and the law. While it is necessary to acknowledge the utility of current dominant and well-established protocols, it is also imperative to note and correct their failures and limitations. This paper illustrates a model which simultaneously comprehends and designates the negative dimensions of the humanitarian catastrophe of torture and brings forth monumental and profound positive strengths of character which sustain survivors. One case drawn from two decades of evaluations of torture demonstrates this innovative update of mainstream medical-scientific practice. A reproducible and easily communicated heuristic model respects clinical variables and reports the interactivity of individual psychological factors with the cultural/ political nexus. A consistent pattern emerged from review of country reports, survivors' affidavits, interviews, reports and testimonies to the court. Ordinary means led to extraordinary findings that were needed to incorporate and supersede the previous paradigms that have defined torture and designated capacities of psychological response. Torture is a crime of specific intent- to deconstruct and shatter the human connections of their subjects. Survivors had the force of human ties to sustain them. Necessary and legitimate methods achieve valid examination and forensic reporting. Professionals have the force to do right-verifiable objective means nurture justice and social progress.
    Medicine and law 09/2013; 32(3):327-45.
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    ABSTRACT: The issue on which I will attempt to cast some light is certainly not novel. It has been ongoing for many years but the pace of scientific progress is gathering and the retreat of ethical barriers is relentless. I will illustrate my thesis by using examples of legal decisions from the realm of assisted human procreation and the posthumous conception of children from the sperm of deceased fathers e.g., the cases of Diane Blood, Parpalaix and Nikolas Coltan Evans. I will also highlight the recent case of Ashley X, a nine year old girl whose parents authorised radical medical treatment to arrest her development. I will argue that the law is being driven to roll back the ethical standards derived from our legacy of Natural Law by the imperatives of human rights e.g., the right to found a family, and the quest for patient autonomy. These are both admirable goals but fulfilling these goals comes at a cost to cherished ethical values e.g., that children are conceived by living fathers and that indulging the personal desires of every individual cannot forever be encompassed. As our legislators and courts chip away at our core network of ethical values, are they replacing them with equivalent values or do their decisions amount to a hollowing out of the core ethical values e.g., Thou shalt not kill and that human life is sacrosanct? Yet abortion is legal in many countries as is euthanasia. Paradoxically there is legislative protection for embryos by limiting experimentation on these clusters of cells. How do you construct a rational ethical framework with such blatant legal inconsistencies in the protection of human life? The sanctity of human life constitutes one of the fundamental pillars of ethical values which, in turn, support much more of the structure of ethics. Is a society that permits freezing the development of a nine year old child not a society whose ethics are so compromised that it is doomed to defend an ever diminishing mass of ethical values? Is there a core of ethics which is sacrosanct or is every ethical frontier fair game for invasion? Are the Ethics Committees, which approve and monitor research in the field of bioethics in Universities. Hospitals and laboratories failing in their duty as gatekeepers? They are after all the first line of defence for the survival of crucial ethical values. Can we continue to indulge the whims and needs of every individual under the guise of human rights or patient autonomy? Can a civilised society endure as such with an ever diminishing mass of ethical values?
    Medicine and law 09/2013; 32(3):251-75.
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    ABSTRACT: This paper analyses the meaning of Article 6, para. 2, sub c of the Biotechnology Directive prohibiting patents on inventions using human embryos for industrial or commercial purposes. It first examines the evolution ofthe Court of Justice ofthe EU's interpretation of this provision (which is part of the morality clause) and focuses on its most recent decision, Brüstle v. Greenpeace. This is considered a landmark case for three reasons: firstly, because it defines for the first time the term "embryo" in patent law; secondly, because it is the Court of Justice (and not EPO) that ruled on patent law; the third reason is its very broad interpretation of the morality exclusion. The exclusion is no longer limited to embryos but is extended to (even banked) embryonic stem cells and all downstream products made with them. It then looks into the consequences for the patentability of inventions using cells derived from human embryonic stem cells, such as Brüstle's invention. The recent decision by Germany's Federal Court of Justice on the validity of Brüstle's patent emphasises the limited influence on the patentability of those inventions. After that, the paper addresses possible cuts in funding stem cell research and even legislative bans of this type of research. This is followed by an evaluation of the existence and content of the morality exclusion. After a comparative analysis with the US, which is lacking in such morality exclusion, the paper concludes that the morality clause as a whole paid its dues but the provision on the use of human embryos is questionable as there is no European consensus against the use of human embryos for industrial or commercial purposes.
    Medicine and law 09/2013; 32(3):347-72.

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