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PubMed2004

Index of suspicion: feeling not believing.

Throughout the U.S., state laws require professionals who work with children to report cases of suspected child abuse to child protection services. Both practically and conceptually, however, significant problems arise from a lack of clarity regarding the threshold that has been set for reporting. Specifically, there is no consensus as to what constitutes reasonable suspicion, and little direction for how mandated reporters should gauge their legal and professional responsibilities when they harbor suspicion. In this paper we outline the context of the problem, discuss the nature and scope of its conceptual underpinnings, and offer recommendations for moving towards a concrete, practical solution.

Attitude of Health Personnel↗
PubMed2002

Resource allocation decisions in Canada's health care system: can these decisions be challenged in a court of law.

This paper explores how the Canadian courts have responded to resource allocation decisions that have impacted on patients. While there have been few Canadian cases, those that exist fall into two categories. In the first part of the paper, we discuss recent cases that fall into the category of traditional negligence cases where a patient has been harmed and is seeking redress from the providers of care. What is emerging is that individual defendants, either physicians or institutions, are raising economic factors in their defence. The issue, we examine in this context is whether economic arguments can be successful in justifying the level of care that was provided and we conclude that, to date, courts have not been receptive to these arguments. The second part of the paper discusses those cases where patients have used legal arguments to try and change a governmental/policy decision, or to seek redress from harm caused by such a decision that has affected their access to care. In this context, patients have used principles of administrative law, constitutional law and tort law with varied degrees of success. We provide an analysis of these cases and conclude that it is difficult for patients to succeed when challenging allocation decisions at the policy level.

Canada↗
PubMed2002

Euthanasia, assisted suicide, and cessation of life support: Japan's policy, law, and an analysis of whistle blowing in two recent mercy killing cases.

Issues pertaining to euthanasia, assisted suicide, and cessation of life support continue to be a subject of worldwide interest. Euthanasia- particularly "active" euthanasia- is not considered legally or socially acceptable in most countries. In Japan, the first judgment of a case involving euthanasia took place in 1949. Since then there have been another five cases that reached the point of sentencing in 1990. All six cases were examples of so called "active euthanasia", in which the termination of life was performed by family members. However, the focus of discussion has been changed dramatically in recent years, owing to two prominent cases of mercy killing in 1995 (Yokohama) and 1996 (Kyoto), respectively. Medical doctors were involved in both of these cases, and euthanasia moved from being a theoretical problem to a practical dilemma. These cases also drew attention to the fact that assisted suicide could be distinguished from euthanasia. The first part of this paper will summarize the current status of euthanasia and the cessation of life support in Japan, focusing on its historical background and policy. The second part will briefly sketch the characteristics of Japanese law and then will examine the two recent cases of mercy killing mentioned above to try and determine the roles of whistle blowing in the medical practice arena, with particular reference to Japanese culture. This analysis is a challenge to elucidate how ethics and the law interact, and influence medical practice in a specific cultural context.

Culture↗
PubMed2004

Mental competence and surrogate decision-making towards the end of life.

German legislation demands that decisions about the treatment of mentally incompetent patients require an 'informed consent'. If this was not given by the patient him-/herself before he/she became incompetent, it has to be sought by the physician from a guardian, who has to be formally legitimized before. Additionally this surrogate has to seek the permission of a Court of Guardianship (Vormundschaftsgericht), if he/she intends to consent to interventions, which pose significant risks to the health or the life of the person under his/her care. This includes 'end-of-life decisions'. Deviations from this procedure are only allowed in acute emergencies or cases of 'medical futility'. On the basis of epidemiological and demographical data it can be shown that the vast majority of surrogate decisions on incompetent patients in Germany is not covered by legally valid consent. Moreover, the data suggests that if consent were to be requested according to the legal regulations, both the legal and medical system could realistically never cope with the practical consequences of this. Additionally, empiric research has revealed serious deficits concerning medical 'end of life-decisions' and practical performance in palliative care. As a consequence a multidisciplinary discussion has developed in Germany about the reform of present legislation with respect to key-issues like the assessment of mental competence, the options for exercising patient self-determination via advance directives and durable powers of attorney, the improvement of palliative care facilities, the clarification of formal procedures for surrogate decision-making in health care and towards the end of life and the possibilities and their limitations of controlling these decision-making processes 'externally' (e.g., by Guardianship Courts or committees). The authors discuss those proposals, which clearly dominate the present debate: They all aim to comply with the scientific basis of German law, jurisdiction and the European traditions of philosophy of health care and bioethics.

Decision Making↗