Unscientific health practice and disciplinary and consumer protection litigation

Evidence-based health care is expected of their practitioners by contemporary health professions. This requires health care to have a foundation in scholarly literature and to have a scientifically valid methodology. However, there are many instances of registered and unregistered practitioners either providing assessment and treatment that does not conform to such requirements or making representations about likely efficacy that are unjustifiable by reference to peer-reviewed clinical knowledge. Sometimes such conduct is predatory and deliberately exploitative; other times it is simply misconceived on the part of practitioners who regard themselves as medical pioneers. This editorial situates such conduct within unscientific and unorthodox health practice. It surveys recent consumer protection and disciplinary decisions to evaluate the role of the law in regulating such conduct. It argues in favour of an assertive legal response to protect vulnerable patients or potential patients against forms of treatment and promises of outcomes that are unscientific and deceptive.

Medicare, Medicaid, and Children's Health Insurance Programs; additional screening requirements, application fees, temporary enrollment moratoria, payment suspensions and compliance plans for providers and suppliers. Final rule with comment period

This final rule with comment period will implement provisions of the ACA that establish: Procedures under which screening is conducted for providers of medical or other services and suppliers in the Medicare program, providers in the Medicaid program, and providers in the Children's Health Insurance Program (CHIP); an application fee imposed on institutional providers and suppliers; temporary moratoria that may be imposed if necessary to prevent or combat fraud, waste, and abuse under the Medicare and Medicaid programs, and CHIP; guidance for States regarding termination of providers from Medicaid and CHIP if terminated by Medicare or another Medicaid State plan or CHIP; guidance regarding the termination of providers and suppliers from Medicare if terminated by a Medicaid State agency; and requirements for suspension of payments pending credible allegations of fraud in the Medicare and Medicaid programs. This final rule with comment period also discusses our earlier solicitation of comments regarding provisions of the ACA that require providers of medical or other items or services or suppliers within a particular industry sector or category to establish compliance programs. We have identified specific provisions surrounding our implementation of fingerprinting for certain providers and suppliers for which we may make changes if warranted by the public comments received. We expect to publish our response to those comments, including any possible changes to the rule made as a result of them, as soon as possible following the end of the comment period. Furthermore, we clarify that we are finalizing the adoption of fingerprinting pursuant to the terms and conditions set forth herein.

The courthouse doors do not close: constitutional challenges to non-economic damage caps

Following efforts at addressing health care reform that spanned decades, the US Congress passed massive health reform legislation in 2010, with key provisions to be implemented over the next few years. This legislation has been heralded as the ultimate legislative response to the spiraling cost of care and inequity of access to care. Yet, these reforms have left many unanswered questions about the perennial issue of tort reform, in particular, caps on non-economic damages. This article begins with a broad perspective on tort reform and the debate surrounding the issue, and ends with a search for common ground where the threat of litigation may be reduced while the constitutional rights of citizens remain safeguarded.

Expert evidence and medical manslaughter: vagueness in action

This article examines the reliance placed on expert evidence in prosecutions of health professionals for gross negligence manslaughter, where juries must decide whether conduct goes beyond civil negligence and constitutes the crime of involuntary manslaughter. It argues that the test for liability is vague and examines some of the consequences of this. Given the vagueness of the offence, jurors are likely to place great reliance on expert medical evidence. Little is known about how experts negotiate the legal process, empirically speaking: how they approach their task, how they view their role as expert witnesses, and the attitudes, biases, and beliefs that may underpin their testimony. Drawing on the experiences and perceptions often medical experts, this article explores how experts manage the vagueness inherent in the task of interpreting and applying gross negligence. Experts appear to go beyond offering purely medical opinion and enjoy engaging with law and the legal process.

[The implementation of legislation acts regarding prevention of occupational exposure to bloodborne pathogens from perspective of Poland as the ue country]

The paper presents the history of implementation of legislation related to prevention of occupational exposure to blood-borne pathogens in the U.S.A. and EU, including a detailed description of existing regulations. The pioneering role of American legislation in establishing relevant legal acts to prevent employees from sharp injuries is also stressed. In this context the European road towards safer work in the healthcare sector is discussed. The legal acts, currently functioning in the EU, including Council Directive 2010/32/EU of 10 May 2010, are described. The Directive implements the Framework Agreement on prevention from sharp injuries in the hospital and healthcare sector concluded by the European Hospital and Healthcare Employers' Association (HOSPEEM) and the European Federation of Public Service Unions (EPSU). The arguments for the universal implementation of legal acts, protecting medical staff in all EU Member States, are pointed out. As far as Poland is concerned, a great need for an urgent action mobilising all social partners (i.e., nurses, doctors, other employees at potential risk of acquiring an occupational infection, employers, professional organisations and scientific bodies) to develop relevant regulations and to assure sufficient funds for their broad implementation is underlined.

TRAP abortion laws and partisan political party control of state government

Targeted Regulation of Abortion Providers (or TRAP) laws impose medically unnecessary and burdensome regulations solely on abortion providers in order to make abortion services more expensive and difficult to obtain. Using event history analysis, this article examines the determinants of the enactment of a TRAP law by states over the period 1974–2008. The empirical results find that Republican institutional control of a state's legislative/executive branches is positively associated with a state enacting a TRAP law, while Democratic institutional control is negatively associated with a state enacting a TRAP law. The percentage of a state's population that is Catholic, public anti-abortion attitudes, state political ideology, and the abortion rate in a state are statistically insignificant predictors of a state enacting a TRAP law. The empirical results are consistent with the hypothesis that abortion is a redistributive issue and not a morality issue.

Supervision by the Dutch Healthcare Inspectorate

The Dutch Healthcare Inspectorate's (Inspectie voor de Gezondheidszorg) supervisory activities are based on proportional use of the instruments. The primary instruments it uses are advice and encouragement. If these do not achieve the desired result, it can implement corrective action by, for example, enhancing its supervision or through agreements limiting the ability to practise a profession. Recourse to disciplinary or administrative measures can be sought, if necessary. There is a tendency to use statutory instruments, which means greater equality before the law and greater legal certainty. It is important in this respect for the Inspectorate to make its considerations more uniform, transparent and predictable.

Mandatory reporting of health practitioners - notifiable conduct

Case histories are based on actual medical negligence claims or medicolegal referrals; however certain facts have been omitted or changed by the author to ensure the anonymity of the parties involved. On 26 March 2008, the Council of Australian Governments signed an Intergovernmental Agreement for a National Registration and Accreditation Scheme for the Health Professions. The new scheme is scheduled to be introduced on 1 July 2010. As part of the scheme all registered health practitioners will be legally required to report any other registered health practitioner who has behaved in a manner that constitutes 'notifiable conduct'. The threshold to be met to trigger the requirement to report notifiable conduct in relation to a practitioner is high, and the practitioner or employer must have first formed a 'reasonable belief' that the behaviour constitutes notifiable conduct. This article discusses this new legislation, the circumstances in which a colleague's conduct must be reported and how a notification should be made.

Legal responsibility and accountability

Shifting boundaries in healthcare roles have led to anxiety among some nurses about their legal responsibilities and accountabilities. This is partly because of a lack of education about legal principles that underpin healthcare delivery. This article explains the law in terms of standards of care, duty of care, vicarious liability and indemnity insurance.

Swine flu, doctors and pandemics: is there a duty to treat during a pandemic?

The swine influenza (H1N1) outbreak in 2009 highlighted the ethical and legal pressures facing general practitioners and health workers in emergency departments in determining the nature and limits of their obligations to their patients and the public. Health workers require guidance on the multiple, overlapping, and at times conflicting legal and ethical duties owed to patients and prospective patients, employers and fellow health workers, and their families. Existing sources of advice on these issues in Australia, by way of statements of medical ethics and other sources of advice, are shown to be in need of further amplification if health workers are to be provided with the certainty and guidance required. Given the complexity of the issues, Australia would therefore benefit from more extensive consultation with the variety of stakeholders involved in these questions if pandemic plans are to smoothly deal with future crises in an ethically and legally sound manner.

The de-medicalisation of assisted dying: is a less medicalised model the way forward?

Although assisted dying has been most commonly presented within a medicalised framework, the notion of de-medicalisation is employed in this paper to suggest that there are emerging models of assisted dying in which some medical aspects assumed to be an integral part of the phenomenon are both challenged and diminished. The paper considers cases where relatives have facilitated a loved one's assisted suicide abroad, cases of assisted death in which the assistor in the actual suicide act is a non-medic, and the growing debate surrounding non-medical grounds for desiring death. In evaluating the potential impact of partial de-medicalisation on the assisted dying debate, the argument presented is that whilst a de-medicalised model could well contribute to a richer understanding of assisted dying and a better death for the person who is assisted, there are cogent reasons to retain some aspects of the medicalised model and that a completely de-medicalised model of assisted dying is unrealistic.

[Vaccination and postexposure prophylaxis in heath-care workers]

Health-care workers are an important professional group exposed to biological risks during their professional activity. The legal regulation of the occupational exposure, as well as the knowledge of occupational diseases, has facilitated the development of prevention measures for this group. Nowadays, vaccination against a number of infectious diseases is considered the most effective strategy of primary prevention. The recommended vaccines include those, according to age, included on adult immunization schedule, and vaccines against infectious diseases that can constitute a major risk, both for the professional and for the patient: chicken pox, rubella, HBV, etc. On the other hand, the occupational exposure to blood or other body fluids (transmission of HIV, HCV and HBV) is the main risk for health-care workers. Nevertheless, at this moment there is no effective immunoprophylaxis against any disease of this group, excepting HBV infection. Thus, occupational exposure prevention, chemoprophylaxis with anti-retroviral drugs when available, and exposure follow-up are the main strategies to decrease transmission risk.

Practicing dental hygienists' perceptions about the bachelor of science in dental hygiene and the oral health practitioner

No research data are available about practicing dental hygienists' opinions regarding the Bachelor of Science in Dental Hygiene (B.S.D.H.) and the oral health practitioner (OHP), a new professional category in dental hygiene; however, such views would be useful to those implementing these programs in the academic setting as well as those involved in proposing and passing legislation regarding them. The purpose of our study was to gather information from a group of practicing dental hygienists regarding their opinions in three areas: 1) the entry-level B.S.D.H., 2) the OHP, and 3) reasons for being for or against these programs. A survey, sent to 564 dental hygiene graduates, used a five-point Likert scale to evaluate perceptions in various categories. The respondents also ranked perceived benefits and negative impacts. The usable return rate was 33.6 percent. Descriptive statistics were developed, and chi-square tests were used to analyze the data. More than 70 percent of the respondents agreed that an associate's degree sufficiently prepared dental hygienists for their positions and that the OHP would have a positive impact on access to dental care. The majority also said they felt the master's-educated hygienist would be adequately prepared to perform proposed OHP functions. Selected demographic variables were found to be significantly associated with perceptions, including that the B.S.D.H. was viewed more positively by younger respondents.

National regulation and accreditation of Australian health practitioners

In 2010, nurses and midwives, together with a number of other identified health professionals, will come under the Australian National Registration and Accreditation Scheme for Health Professionals. The scheme is focused on the improvement of safety and quality of health care services through the independent accreditation of educational programs and the establishment and maintenance of a national public register. In this column the framework and legislative provisions supporting the scheme are discussed.

Medical care for terrorists--to treat or not to treat?

With the escalation of terrorism worldwide in recent years, situations arise in which the perpetration of violence and the defense of human rights come into conflict, creating serious ethical problems. The Geneva Convention provides guidelines for the medical treatment of enemy wounded and sick, as well as prisoners of war. However, there are no comparable provisions for the treatment of terrorists, who can be termed unlawful combatants or unprivileged belligerents. Two cases of severely injured terrorists are presented here to illustrate the dilemmas facing the medical staff that treated them. It is suggested that international legal and bioethical guidelines are required to define the role of the physician and auxiliary medical staff vis a vis injured terrorists. There are extreme situations where the perpetration of violence and the defense of human rights come into conflict, leading to serious ethical and psychological discord. Terrorists, using violence to create fear in order to further their political objectives, might require life-saving medical care if injured during the course of their terror activities.

Executive summary: value-based purchasing and technology assessment in orthopaedics

As US healthcare expenditures continue to rise, reform has shifted from spending controls to value-based purchasing. This paradigm shift is a drastic change on how health care is delivered and reimbursed. For the shift to work, policymakers and physicians must restructure the present system by using initiatives such as process reengineering, insurance and payment reforms, physician reeducation, data and quality measurements, and technology assessments. Value, as defined in economic terms, will be a critical concept in modern healthcare reform. We summarize the conclusions of this ABJS Carl T. Brighton Workshop on healthcare reform.

Guidelines for managing conscientious objection to blood transfusion

Parents sometimes deny their children blood transfusion because of their religious beliefs. The Japanese Joint Committee on the Refusal of Blood Transfusion on Religious Grounds asserts that the health and life of every child younger than 15 years should be guarded by the collective efforts of health, welfare, and advocacy institutions when a parent or guardian seeks to withhold transfusion therapy. Patients 18 years or older should receive treatment without transfusion after signing and submitting a "Certificate of Refusal Blood Transfusion and Exemption from Liability." For a patient younger than 18 years, but 15 years or older, essential transfusion can be performed if the patient or at least one guardian consents. Without patient's or guardian's consent, guidelines for patients 18 years or older shall apply. Health care providers should offer the best possible care that is consistent with a patient's age and competency.