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The juridical guidelines for legal capacity demand the distinction between continuous and temporary mental disorders. A case report illustrates the problematic nature of this distinction. In addition the parallels to legal requirements for guardianship are discussed.
A patient's automony and right to determine his or her treatment is widely recognized in current ethical theory and medical practice. However, conflicts between the desire to respect a competent patient's religious conviction not to be violated and society's interest in preserving life do arise. This paper examines two cases involving Jehovah's Witnesses who signed cards refusing blood transfusions and who were subsequently transfused. In the Canadian case, the physician was found liable for battery. In the American case, the courts upheld the appointment of a guardian who authorized the transfusion. In the emergency situation, if there is a reasonable doubt about the validity of a treatment refusal, the presumption must be to render life-saving treatment. The author believes, however, that a written advance directive could be developed that respects he religious convictions of Jehovah's Witnesses and the ethical and legal responsibilities of physicians.
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The author applies the theory of public goods on donated blood. Donated blood may be taken as a 'public good' like water and air, police and fire brigades. This theory trends to imply a preference for voluntary donation and bloodbanking by public and nonprofit organisations as well as for low cost supply. An additional commercial supply of blood nevertheless is welcome. Quality as well as quantity of blood depend first of all on the willingness to donate and the honesty of the donors about their health. An altruistic motivation alone, which is not triggered by some material incentive, does not in all systems guarantee a sufficient quantity of safe blood. Both the altruistic as well as the reimbursement-oriented donor's willingness and honesty have to be guarded by sound practice in bloodbanking and adequate public control within a legal framework which reflects the vital role of blood supply. A legal implementation of product liability will certainly be an important instrument in this field.
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Joseph Finelli, after a heart transplant, is being artificially maintained by medications and a gastrostomy tube (G-tube). He is not brain dead nor in a persistent vegetative state. In my role as court-appointed Guardian ad Litem (GAL-court investigator), it appears to me that Mr. Finelli is being treated against his stated goals and values. After applying the substituted judgment factors, I recommend the withdrawal of the medication which sustains his life. His family adamantly opposes my position.
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The medical profession has an increasing interface with the profession of law and in no specialty is this more apparent than in pediatric neurosurgery. The areas of interface include the neurosurgeon as a defendant, as an expert witness, and as an ethicist. The role of a neurosurgical defendant may be eased if he/she is aware of the legal principles involved in malpractice litigation. This article discusses the doctrine of 'standard of care' as it applies presently in malpractice cases. The accepted defenses to a claim of breach of standard of care are outlined. The history of the principle of 'informed consent' is discussed briefly, as well as its present application. The position of the mature minor and emancipated minor in the process of informed consent is described. Finally, a few recommendations for avoidance of malpractice are suggested.
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The legal consensus that has evolved through adjudication and legislation since the Karen Quinlan case in 1976 is founded on the premise that there is a bright line between passive euthanasia and active euthanasia. Indeed, the term passive euthanasia is often eschewed in favor of less emotionally-laden terminology such as "forgoing life-sustaining treatment" or "terminating life support" so as to further sever any possible connection with active euthanasia. Legal approval has been bestowed upon passive euthanasia under certain circumstances while active euthanasia is routinely condemned. This consensus was put to a test in 1990 when the United States Supreme Court ruled on the Cruzan case. However, the Court's narrow decision did not upset the consensus, and in the most significant appellate decisions handed down by state courts since Cruzan, there has been a reaffirmation--and possibly even an extension--of the consensus. Two other threats to the legal consensus about forgoing life-sustaining treatment have begun to manifest themselves: the increasing pressure for mercy killing and "futility" cases. Both of these challenge the fundamental premises on which the consensus is grounded.
The last few years have brought rapid developments in the law regarding advance directives--both statutory and case law. This article provides an overview of these changes, including the recent amendments to the Medicare and Medicaid laws requiring hospitals and other institutional health care providers to inform adult patients and educate staff and the community about the availability and use of advance directives and the New York and Massachusetts statutes providing for the appointment of health care agents by proxy.
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