Ethical framework for adult social care in COVID-19

In March 2020, the Government produced a document entitled "Responding to COVID-19: The Ethical Framework for Adult Social Care" ('The Ethical Framework'). In this article, we summarise the key features of the proposed ethical framework and subject it to critical analysis. We highlight three primary issues. First, the emphasis placed on autonomy as the primary ethical principle. We argue if ever there was a context in which autonomy should dominate the ethical analysis, this is not it. Second, we examine the interface between ethics and law which is largely overlooked in the document. Finally, we explore the surprising lack of attention paid to the concept of responsibility and communal obligations within the framework.

The 'French exception': the right to continuous deep sedation at the end of life

In 2016, a law came into force in France granting terminally ill patients the right to continuous deep sedation (CDS) until death. This right was proposed as an alternative to euthanasia and presented as the 'French response' to problems at the end of life. The law draws a distinction between CDS and euthanasia and other forms of sympton control at the end of life. France is the first country in the world to legislate on CDS . This short report describes the particular context and underlying social values that led to this piece of legislation, and explores its meaning in the wider French context.

Should We Reject Donated Organs on Moral Grounds or Permit Allocation Using Non-Medical Criteria?: A Qualitative Study

Conditional and directed deceased organ donations occur when donors (or often their next of kin) attempt to influence the allocation of their donated organs. This can include asking that the organs are given to or withheld from certain types of people, or that they are given to specified individuals. Donations of these types have raised ethical concerns, and have been prohibited in many countries, including the UK. In this article we report the findings from a qualitative study involving interviews with potential donors (n = 20), potential recipients (n = 9) and transplant staff (n = 11), and use these results as a springboard for further ethical commentary. We argue that although participants favoured unconditional donation, this preference was grounded in a false distinction between 'medical' and 'non-medical' allocation criteria. Although there are good reasons to maintain organ allocation based primarily upon the existing 'medical' criteria, it may be premature to reject all other potential criteria as being unacceptable. Part of participants' justification for allocating organs using 'medical' criteria was to make the best use of available organs and avoid wasting their potential benefit, but this can also justify accepting conditional donations in some circumstances. We draw a distinction between two types of waste - absolute and relative - and argue that accepting conditional donations may offer a balance between these forms of waste.

The Double Helix: Applying an Ethic of Care to the Duty to Warn Genetic Relatives of Genetic Information

Genetic testing reveals information about a patient's health status and predictions about the patient's future wellness, while also potentially disclosing health information relevant to other family members. With the increasing availability and affordability of genetic testing and the integration of genetics into mainstream medicine, the importance of clarifying the scope of confidentiality and the rules regarding disclosure of genetic findings to genetic relatives is prime. The United Nations International Declaration on Human Genetic Data urges an appreciation for principles of equality, justice, solidarity and responsibility in the context of genetic testing, including a commitment to honoring the privacy and security of the person tested. Considering this global mandate and recent professional statements in the context of a legal amendment to patient privacy policies in Australia, a fresh scrutiny of the legal history of a physician's duty to warn is warranted. This article inquiries whether there may be anything ethically or socially amiss with a potential future recommendation for health professionals or patients to universally disclose particular cancer predisposition genetic diagnosis to genetic family members. While much of the discussion remains applicable to all genetic diagnosis, the article focuses on the practice of disclosure within the context of BRCA1/2 diagnosis. An 'ethic of care' interpretation of legal tradition and current practice will serve to reconcile law and medical policy on the issue of physician disclosure of genetic results to family members without patient consent.

Legal and Ethical Considerations in Allowing Parental Exemptions From Newborn Critical Congenital Heart Disease (CCHD) Screening

Critical congenital heart disease (CCHD) screening is rapidly becoming the standard of care in the United States after being added to the Recommended Uniform Screening Panel (RUSP) in 2011. Newborn screens typically do not require affirmative parental consent. In fact, most states allow parents to exempt their baby from receiving the required screen on the basis of religious or personally held beliefs. There are many ethical considerations implicated with allowing parents to exempt their child from newborn screening for CCHD. Considerations include the treatment of religious exemptions in our current legal system, as well as medical and ethical principles in relation to the rights of infants. Although there are significant benefits to screening newborns for CCHD, when a parent refuses for religious or personal beliefs, in the case of CCHD screening, the parental decision should stand.

WHO'S IN CHARGE? THE RELATIONSHIP BETWEEN MEDICAL LAW, MEDICAL ETHICS, AND MEDICAL MORALITY?

Medical law inevitably involves decision-making, but the types of decisions that need to be made vary in nature, from those that are purely technical to others that contain an inherent ethical content. In this paper we identify the different types of decisions that need to be made, and explore whether the law, the medical profession, or the individual doctor is best placed to make them. We also argue that the law has failed in its duty to create a coherent foundation from which such decision-making might properly be regulated, and this has resulted in a haphazard legal framework that contains no consistency. We continue by examining various medico-legal topics in relation to these issues before ending by considering the risk of demoralisation.

Of paradox and plausibility: the dynamic of change in medical law

This article develops a model of change in medical law. Drawing on systems theory, it argues that medical law participates in a dynamic of 'deparadoxification' and 'reparadoxification' whereby the underlying contingency of the law is variously concealed through plausible argumentation, or revealed by critical challenge. Medical law is, thus, thoroughly rhetorical. An examination of the development of the law on abortion and on the sterilization of incompetent adults shows that plausibility is achieved through the deployment of substantive common sense and formal stylistic devices. It is undermined where these elements are shown to be arbitrary and constructed. In conclusion, it is argued that the politics of medical law are constituted by this antagonistic process of establishing and challenging provisionally stable normative regimes.

[Physical restraint and procedure]

The widespread practice of physical restraint of the elderly has used in most case in order to protect elders against injuries after falls or to manage behaviour agitation during delirium for example. However, "protect" isn't correct because of the adverse effects have been reported as falls increase, pressures sores, depression, aggression and death. In fact, efficacy of restraints for safeguarding patients from injury has not been demonstrated clinically. This paper reviews the current medico-legal knowledge regarding physical restraint use in this frail population and suggests some considerations about ethical practice and procedure evaluation.

The degree of certainty in brain death: probability in clinical and Islamic legal discourse

The University of Michigan conference "Where Religion, Policy, and Bioethics Meet: An Interdisciplinary Conference on Islamic Bioethics and End-of-Life Care" in April 2011 addressed the issue of brain death as the prototype for a discourse that would reflect the emergence of Islamic bioethics as a formal field of study. In considering the issue of brain death, various Muslim legal experts have raised concerns over the lack of certainty in the scientific criteria as applied to the definition and diagnosis of brain death by the medical community. In contrast, the medical community at large has not required absolute certainty in its process, but has sought to eliminate doubt through cumulative diagnostic modalities and supportive scientific evidence. This has recently become a principal model, with increased interest in data analysis and evidence-based medicine with the intent to analyze and ultimately improve outcomes. Islamic law has also long employed a systematic methodology with the goal of eliminating doubt from rulings regarding the question of certainty. While ample criticism of the scientific criteria of brain death (Harvard criteria) by traditional legal sources now exists, an analysis of the legal process in assessing brain death, geared toward informing the clinician's perspective on the issue, is lacking. In this article, we explore the role of certainty in the diagnostic modalities used to establish diagnoses of brain death in current medical practice. We further examine the Islamic jurisprudential approach vis-à-vis the concept of certainty (yaqīn). Finally, we contrast the two at times divergent philosophies and consider what each perspective may contribute to the global discourse on brain death, understanding that the interdependence that exists between the theological, juridical, ethical, and medical/scientific fields necessitates an open discussion and active collaboration between all parties. We hope that this article serves to continue the discourse that was successfully begun by this initial interdisciplinary endeavor at the University of Michigan.

Law, bioethics and practice in France: forging a new legislative pact

In France, bioethics norms have emerged in close interaction with medical practices. The first bioethics laws were adopted in 1994, with provisions for updates in 2004 and most recently, in 2011. As in other countries, bioethics laws indirectly refer to certain fundamental values. The purpose of this paper is threefold. First, I shall briefly describe the construction of the French bioethics laws and the values they are meant to protect. Secondly, I will show that the practice of clinical ethics, as reported in a few studies on ART, living organ donation and PGD, challenge the role attributed to doctors as "gatekeepers" of those fundamental values. Thirdly, I will suggest that the quality of medical practices would improve if the law focused on strengthening the tacit pact between doctors and patients, rather than putting doctors in charge of enforcing societal values. Doctors, for their part, would limit their role to what they can do best: provide sufficient patient support and safe care. Against those who argue that we should dispense with bioethics laws altogether, I hold that the laws are useful in order to limit the development of abusive practices. However, a new legislative approach should be adopted which would a positive presumption in favor of patients' requests.

Pain as a fact and heuristic: how pain neuroimaging illuminates moral dimensions of law

In legal domains ranging from tort to torture, pain and its degree do important definitional work by delimiting boundaries of lawfulness and of entitlements. Yet, for all the work done by pain as a term in legal texts and practice, it has a confounding lack of external verifiability. Now, neuroimaging is rendering pain and myriad other subjective states at least partly ascertainable. This emerging ability to ascertain and quantify subjective states is prompting a "hedonic" or a "subjectivist" turn in legal scholarship, which has sparked a vigorous debate as to whether the quantification of subjective states might affect legal theory and practice. Subjectivists contend that much values-talk in law has been a necessary but poor substitute for quantitative determinations of subjective states--determinations that will be possible in the law's "experiential future." This Article argues the converse: that pain discourse in law frequently is a heuristic for values. Drawing on interviews and laboratory visits with neuroimaging researchers, this Article shows current and in-principle limitations of pain quantification through neuroimaging. It then presents case studies on torture-murder, torture, the death penalty, and abortion to show the largely heuristic role of pain discourse in law. Introducing the theory of "embodied morality," the Article describes how moral conceptions of rights and duties are informed by human physicality and constrained by the limits of empathic identification. Pain neuroimaging helps reveal this dual factual and heuristic nature of pain in the law, and thus itself points to the translational work required for neuroimaging to influence, much less transform, legal practice and doctrine.

The gap between voluntary admission and detention in mental health units

This paper presents the case of a young man with a diagnosis of schizophrenia, who agreed to inpatient treatment primarily to avoid being formally detained. I draw on Peter Breggin's early critique of coercion of informal patients to supply an updated discussion of the ethical issues raised. Central questions are whether the admission was coercive, and if so, whether unethical. Whether or not involuntary admission would be justified, moral discomfort surrounds its appearance as a threat. This arises in part from ambivalence about autonomy: although a 'choice' is made, the threat of detention impinges on the patient's choice. Recent legal developments provide some experience of safeguarding those whose consent is not obtained. This highlights the lack of safeguards in this 'gap' and suggests that we have the tools with which to begin to deal with the problem.

"Other selves": moral and legal proposals regarding the personhood of cryopreserved human embryos

This essay has two purposes. The first is to argue that our moral duties towards human embryos should be assessed in light of the Golden Rule by asking the normative question, "how would I want to be treated if I were an embryo?" Some reject the proposition "I was an embryo" on the basis that embryos should not be recognized as persons. This essay replies to five common arguments denying the personhood of human embryos: (1) that early human embryos lack ontological individuation; (2) that they are members of the species Homo sapiens but not yet human persons; (3) that the argument for personhood commits the "heap argument" fallacy; (4) that since human procreation in nature is inefficient, human embryos cannot be persons; and (5) the "burning building" scenario proves that all arguments for personhood are irrational or inconsistent. The second purpose is to set forth and criticize in light of the normative judgement defended in part one the present legal situation of cryo-preserved embryos in the U.S. The essay ends by proposing legislative reforms to protect ex utero human embryos.

"What does the law say?"

Although consideration of the law has a place in ethics, moral problems should not be reduced to legal questions

[Court intervention in medical decisions and the generation of new conflicts]

In the last decades, medical decisions are increasingly submitted to the courts of law for a number of reasons, also in our country. The various causes and different issues involved in such proceedings require comments referred to the possibility of causing an additional conflict to that which the courts of law are in theory required to address. In that context, this paper explores the repeated cases in which, due to the lack of positive legislation on a given issue, or due to different interpretations of existing legislation, or for lack of understanding of scientific progress or medical facts, defensive medicine finds its way to the detriment of society as a whole. In many other cases, fearful inexplicable attitudes of the doctors involved result in a transfer of exclusively medical decisions to the courts of law. This attitude contributes to the dismantling of a profession such as medicine, which is already subject to the difficult context of a variety of health systems that fail to sufficiently comply with their obligation of taking care of a community that needs and supports them.

[AIDS and forensic medicine: II. the particular issues]

The article deals with some issues of forensic medicine relevance, as well as ethical one, about HIV+/AIDS condition, which still represent open problems in regulations and in the case-law. Particularly, in the light of the specific Italian regulations (namely, the Law 5 June 1990 no. 135), the Authors address the juridical fundaments of the care of HIV+/AIDS patients, reaffirming the obligation for all the healthcare professionals to give care in every case of infection from HIV. Secondly, the issue of the diagnostic tests and the screenings is faced, sustaining the obligatoriness to gain an adequate previous consent by the subject and, however, only for clinical necessity and in his/her best interest. Finally, the delicate matter of the professional secrecy is examined, of the guardianship of confidentiality and of the partner notification is examined. In general, although the doctrine and jurisprudence not justify the transmission of HIV+/AIDS patient's personal data, yet the specific matter is not easily resolvable exclusively in juridical terms, because it is necessary remind also the extra-juridical--that is ethical--nature of deontological norms.

Harmonizing legal and ethical standards for interactions between health care providers and industry

A complex set of federal and state laws, together with numerous voluntary codes, regulate the provision of gifts, consulting arrangements, and other interactions between industry and health care professionals. The provisions of these laws and codes are reviewed, and a suggested harmonization with respect to the most common types of interactions is proposed.

A critical analysis of criticisms of the Oregon Death with Dignity Act

This article critically examines the validity of common criticisms of the Oregon Death with Dignity Act, primarily through reviewing published research and analyses. After summarizing the law and recent developments, 11 areas of concerns are examined: (a) the amount of data collected, (b) the availability of the data, (c) the reporting process, (d) protection of physicians, (e) terminal illness as a requirement, (f) the amount of data on palliative care interventions, (g) data on lethal prescriptions, (h) data on psychological/psychiatric evaluations, (i) whether the decision to request medication is informed, (j) whether the request is voluntary, and (k) financial factors. The authors examine each of these areas of concern and find criticisms to be unfounded given the research and analyses conducted to date.

[The law and "the bioethics of the beginning of life" on the Internet. A new electronic information resource promoted and developed by the Italian National Research Council]

The Institute of Theory and Techniques of the Legal Information (ITTIG) of the Italian National Research Council (CNR) has produced various electronic information systems. Among these, the archive BIG (Bibliography on right to life and interruption of pregnancy, bioethics and genetic engineering). The article presents the archive BIG in its previous version in print and Internet versions, and it describes its main characteristics (original, analytical, objective, scientific). At last, it exposes the rules for data selection and the debate about the right to life in Italy. The archive BIG enables the expert as well as the layman, to exercise an effective control on the enormous material published on this matter.

Basic ethical principles in European bioethics and biolaw: autonomy, dignity, integrity and vulnerability--towards a foundation of bioethics and biolaw

This article summarizes some of the results of the BIOMED II project "Basic Ethical Principles in European Bioethics and Biolaw" (1995-1998) connected to a research project of the Danish Research Councils "Bioethics and Law" (1993-1998). The BIOMED project was based on cooperation between 22 partners in most EU countries. The aim of the project was to identify the ethical principles of respect for autonomy, dignity, integrity and vulnerability as four important ideas or values for a European bioethics and biolaw. The research concluded that the basic ethical principles cannot be understood as universal everlasting ideas or transcendental truths but they rather function reflective guidelines and important values in European culture. The method of the research was conceptual, philosophical analysis of the cultural background of the four values or normative ideas that people use and find important in their existence. Moreover, this was combined with analysis of empirical legal material and policy documents. Also, a number of qualitative interviews with relevant experts were carried out. Another important result of the BIOMED project was the partner's Policy Proposals to the European Commission, the Barcelona Declaration, unique as a philosophical and political agreement between experts in bioethics and biolaw from many different countries. The Policy Proposals are reprinted here at the end of the article.