The legal and functional status of the medical proxy: suggestions for statutory reform.
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Advance Directive Adherence↗
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Liberty, beneficence, and involuntary confinement.
My purpose in this paper is to show that current legal criteria for paternalistic involuntary psychiatric confinement of the mentally ill are both too narrow and too broad. I do this by first developing a principle of justified paternalistic interference with adults, which I take to be acceptably protective of individual liberty, but which does not require unnecessary sacrifices of individual welfare. After offering an analysis of current legal criteria for involuntary confinement, I argue that an acceptable theory of paternalistic interference reveals that those criteria (1) exclude some cases where confinement would be morally permissible, and (2) allow paternalistic confinement of many whose detention is not morally justifiable.
Aged↗
Prosecutors and end-of-life decision making.
OBJECTIVE: To examine personal beliefs and professional behavior of state criminal prosecutors toward end-of-life decisions. DESIGN: Mail survey. SETTING: District attorney offices nationwide. PARTICIPANTS: All prosecuting attorneys who are members of the National District Attorneys Association. A total of 2844 surveys were mailed with 2 follow-up mailings at 6-week intervals; 761 surveys were returned for a response rate of 26.8%. The majority of respondents were white men, Protestant, and served in rural areas. INTERVENTIONS: None. MAIN OUTCOME MEASURES: On the basis of 4 case scenarios, (1) professional behavior as determined by respondents' willingness to prosecute and what criminal charges they would seek; and (2) personal beliefs as determined by whether prosecutors believed the physicians' actions were morally wrong and whether they would want the same action taken if they were in the patient's condition. RESULTS: Most respondents would not seek prosecution in 3 of the 4 cases. In the fourth case, involving physician-assisted suicide, only about one third of the respondents said that they definitely would prosecute. Those who would prosecute would most often seek a charge of criminal homicide. A majority of respondents believed that the physicians' actions were morally correct in each of the 4 cases and would want the same action taken if they were in the patient's position. There was a strong correlation between personal beliefs and professional behaviors. CONCLUSIONS: A large majority of responding prosecutors were unwilling to prosecute physicians in cases that clearly fall within currently accepted legal and professional boundaries. In the case of physician-assisted suicide, results reflected a surprisingly large professional unwillingness to prosecute and an even greater personal acceptance of physician-assisted suicide.
Attitude to Death↗
Consent to treatment and the mentally incapacitated adult.
Doctors are sometimes faced with adult patients who lack the mental capacity to consent to treatment. In a questionnaire, 120 doctors in a district general hospital were asked what action they would take if such a patient had a clear need for elective treatment. Of the 89 who replied, 57 said they would seek consent from relatives or others; 11 of these, nevertheless, stated that treatment could proceed without such consent. These results, and inquiries about other options, pointed to widespread misunderstanding of the law. In English law, no one can give legally valid consent on behalf of another adult. When an individual is unable to give consent, common law allows a doctor to protect a patient's best interests by treating him or her in accordance with a responsible body of medical opinion.
Adult↗
Mental competence and end-of-life decision making: death row volunteering and euthanasia.
This article reports on a qualitative study of defense attorneys' perceptions of the mental competence or rationality of death row inmates' decisions to waive habeas appeals and proceed directly to execution. Interviews were conducted with twenty attorneys who have either directly represented or been closely involved with would-be volunteers. Through analytic comparison with another end-of-life decision, euthanasia, this article reports on four themes from the interviews: (a) attorneys' perceptions of the legal standard of competence, (b) their perceptions of the competency evaluation process, (c) implications of competing interpretive frames (i.e., volunteering vs. suicide), and (d) the rationality of decisions to waive appeals. Implications of research findings, particularly in terms of recent restructured models of competence, are also discussed.
Attitude↗
Legal guidelines related to end-of-life decisions: are nurse practitioners knowledgeable?
Public demand and professional standards dictate that primary care providers must be prepared to offer guidance and advance care planning for end-of-life decision-making to their patients. The purpose of this study was to describe the relationship between nurse practitioners' (NPs) knowledge of legal guidelines for end-of-life decision-making, their knowledge of the clinical application of advance care planning (ACP), and their comfort in counseling patients on these issues and personal attitudes toward end-of-life care. This descriptive, correlational study used survey data from a convenience sample of 145 Washington State NPs. Most NPs in this study were reasonably knowledgeable about the legal guidelines for end-of-life decision-making and clinical applications for ACP. They were somewhat comfortable with counseling patients on end-of-life decisions and expressed positive attitudes toward end-of-life care. However, a significant number of NPs were ill-informed about the legal guidelines and few actually incorporated ACP into their clinical practice. The authors suggest educational programs should focus on addressing the problem of stable misinformation related to legal guidelines. In addition, education should offer NPs didactic information and role modeling to skillfully incorporate ACP into clinical practice.
Advance Directives↗
Substituting a judgment of best interests: dignity and the application of objective principles to PVS cases in the U.K.
The mêlée that surrounded the last days of Terri Schiavo's life was reminiscent of a classical Greek tragedy. Much like Antigone, Ms. Schiavo became enmeshed in irresistible and opposite forces, resolved to use her situation as an arena for the determination of political and legal issues as diverse as the exercise of states' rights, the extent of individual rights, the role of the judiciary, the re-opening of the abortion debate, and the regulation of stem cell research. As Europeans watched the drama unfold, the forces at play in the United States clashed head-on, in a rhetorically inflammatory spectacle which, on this side of the Atlantic, left many aghast. Most unsettling was the prospect of individuals wielding the power of state and national legislatures in what was, ultimately, an intensely personal affair. In the United Kingdom, the struggle was a stark reminder of the differences, not only between British and American political culture, but between our approaches to legal issues which present themselves at the end of life. The existence of well-established procedures and principles, and the extensive involvement of neutral third parties and the courts in pursuit of an objective determination of an individual patient's 'best interests', are key to the conclusion that Terri Schiavo's case would have been handled at least as effectively and efficiently as it was by the courts in Florida and the United States. That issues of consent and capacity can be determined by British courts on the basis of generally applicable principles leads to the subsequent conclusion that a 'best interests' determination leaves significantly less scope for conflict than the individualistic, much more personal and determinative construct of the 'substituted judgment' test in the United States.
Euthanasia, Passive↗
Protecting third parties: a decade after Tarasoff.
The authors discuss current public policy concerning the treatment of potentially violent psychiatric patients and outline some legal and ethical precedents of the current policy. Therapeutic interventions before and after the Tarasoff decision are compared. The authors make specific recommendations for clinicians, who they believe tend to interpret laws too restrictively. They suggest that courts need to rethink current liability standards so that legal decisions can be more clinically informed. Finally, they believe that legislative interventions which specify that warning the potential victim and notifying the police absolve psychotherapists from liability may lead to reflexive rather than reflective management of violent patients.
California↗
The effect of legislative requirements on the use of breast-conserving surgery.
BACKGROUND: We studied the effect of state legislation requiring the disclosure of options for the treatment of breast cancer on the use of breast-conserving surgery in clinical practice. METHODS: The National Cancer Institute's Surveillance, Epidemiology, and End Results registry provided data on women from 30 through 79 years of age who underwent breast-conserving surgery or mastectomy for local or regional breast cancer from 1983 through 1990. We examined the trend over time in use of breast-conserving surgery among patients in four sites (Connecticut, Iowa, Seattle, and Utah) where there were no state laws specifically requiring the disclosure of options for the treatment of breast cancer by physicians. For four additional sites (Detroit, Atlanta, New Mexico, and Hawaii) that had such legislation, we determined whether the rate of breast-conserving surgery after the legislation was different from the expected rate. RESULTS: An attorney rated the legislation as giving most direction to physicians in Michigan, followed by Hawaii, Georgia, and New Mexico. The rate of breast-conserving surgery was up to 8.7 percent higher than expected in Detroit for six months after the passage of the Michigan law (P<0.01). The rate was up to 13.2 percent higher than expected in Hawaii for 12 months after that state's law was passed (P<0.05) and up to 6.0 percent higher than expected in Atlanta for 3 months after the passage of the Georgia law (P<0.01). After these transient increases, the surgery rates reverted to the expected levels. No significant effect was detected in New Mexico, where only a resolution without legal force was passed. CONCLUSION: Legislation requiring physicians to disclose options for the treatment of breast cancer appeared to have only a slight and transient effect on the rate of use of breast-conserving surgery.
Adult↗
Obligatory explanation by medical doctors according to Austrian legislation during the last 100 years.
This paper gives a brief survey of Austrian jurisdiction regarding the doctor's duty to inform the patient, revealing that the requirements in respect to the standard of medical information have considerably increased. Most important is the fact that the explanation to the patient is not dealt with in general, but has become a subject of investigation instead. Decisions of the Supreme Court on neglecting explanation have increased in number. The slogan "salus aegroti suprema lex" does not sufficiently explain the legal situation in Austria. The basic principles of German attitude and jurisdiction have obviously been transferred to Austria; numerous parallel passages - with respect to the wording and the content - cannot be neglected. The verdicts of the Supreme Court of Justice concerning the manner and degree of explanation are compulsory knowledge for a medical doctor. Therefore the basic principles ofjurisdiction ought to be taught to students according to their current interpretation.
Austria↗
Professional privilege, driving and epilepsy, the doctor's responsibility.
Privacy and professional privilege between doctor and patient were reviewed at the 21st International Epilepsy Congress and at the First Academic Seminar of the Australian College of Legal Medicine (ACLM). A survey was conducted at the ACLM to review the attitudes of a group of doctors who were also trained within the law, regarding professional privilege in general and the responsibilities and liabilities of doctors when dealing with non-compliant patients who have uncontrolled epilepsy and continue to drive motor vehicles. Most responders (17/19) felt that there should be professional privilege between doctor and patient, although only one respondent felt that such privilege should be absolute. Fourteen out of 19 respondents felt that doctors had a duty to report those patients who posed a risk, with 4/19 denying such duty and one respondent being undecided. Inconsistencies emerged when all respondents felt that a doctor should report a non-compliant, dangerous patient, as presented within the scenario and 4/19 of respondents attributed legal liability to the doctor for loss of income by the family of the victim of a traffic accident, resultant from failure to disclose. The study concluded that it was safer for the doctor to report patients seen as posing a foreseeable risk, unless such reporting contravened legislative restriction as may exist in such jurisdictions as in France.
Attitude↗
Medical certification of the mentally ill: a protection for the individual's rights.
Physicians have been criticized for abusing the civil rights of the mentally ill by their methods of committal. To see if such criticism is justified in Canada, a review was conducted of all the major legal journals to identify cases in which it was alleged that physicians had wrongfully certified a patient. These cases are outlined, and, when considered along with the scientific literature, show no justification to support allegations of abuse, but rather show that physicians act with care and concern on behalf of their patients.
Adult↗
Assessment of coercive and noncoercive pressures to enter drug abuse treatment.
This paper reports preliminary data derived from a standardized interview scoring procedure for detecting and characterizing coercive and noncoercive pressures to enter substance abuse treatment. Coercive and noncoercive pressures stemming from multiple psychosocial domains are operationalized through recourse to established behavioral principles. Inter-rater reliability for the scoring procedure was exceptional over numerous rater trials. Substantive analyses indicate that, among clients in outpatient cocaine treatment, 'coercion' is operative in multiple psychosocial domains, and that subjects perceive legal pressures as exerting substantially less influence over their decisions to enter treatment than informal psychosocial pressures. Implications for drug treatment planning, legal and ethical issues, and directions for future research are proposed.
Adult↗
Knowledge of the legislation governing proxy consent to treatment and research.
OBJECTIVE: To assess the knowledge of four groups of individuals regarding who is legally authorised to consent to health care or research involving older patients. DESIGN: A provincewide postal survey. SETTING: Province of Quebec, Canada. PARTICIPANTS: Three hundred older adults, 434 informal caregivers of cognitively impaired individuals, 98 researchers in aging and 136 members of research ethics boards (REBs). MEASUREMENTS: Knowledge was assessed through a pretested postal questionnaire comprising five vignettes that describe hypothetical situations involving an older adult who requires medical care or is solicited for research. The respondent had to identify the person who is legally authorised to provide consent. RESULTS: Nearly 80% of all respondents provided the correct answer when the hypothetical scenario depicted a person who was competent to consent or incompetent but legally represented. Knowledge was worse (from 2% among older adults to 44% among REB members) for the scenario describing a research situation that involved an incompetent adult without a legal guardian. CONCLUSION: The observed lack of knowledge raises doubts about the ability of current legislation to truly protect the rights of older adults with diminished decision making capacity. It points to the need for educational programmes aimed at increasing public awareness of the legislation put in place for those requiring special protection.
Aged↗
Limiting resuscitation: emerging policy in the emergency medical system.
Patients, families, and physicians frequently decide that a hospitalized patient will forgo cardiopulmonary resuscitation and document this decision with a do-not-resuscitate (DNR) order. In community settings (home, nursing home, hospice), these orders may conflict with paramedics' standing orders to provide cardiopulmonary resuscitation whenever it is medically indicated. We did a nationwide telephone survey of state offices for coordination of emergency medical services (EMS) to see how the states deal with this potential conflict. We identified eight states that have specific policies enabling EMS personnel to accept DNR orders for patients being transported by ambulance. State officials identified administrative complexities and legal concerns as the primary barriers to enacting prehospitalization DNR policies. We also identified 21 local EMS systems that have developed policies for accepting orders to withhold life-sustaining treatment. Four types of policy models, characterized according to procedure for validating DNR orders and telephone accessing the EMS system, show that regulatory reform can address policy barriers in the absence of enabling legislation.
Attitude of Health Personnel↗
Reviving Ulysses contracts.
Ulysses contracts have faced paternalism objections since they first were proposed. Since the contracts are designed to override a present request from a legally competent patient in favor of a past request made by that patient, enforcement of these contracts was argued to be unjustifiable strong paternalism. Recent legal developments and new theories of practical reasoning suggest that the discussion of Ulysses contracts should be revived. This paper argues that with a proper understanding of the future-directed planning embodied in Ulysses contracts, the charge of strong paternalism can be answered, and the enforcement of some Ulysses contracts may be justified under the rubric of weak paternalism.
Advance Directive Adherence↗
The patient's right to information in Japan--legal rules and doctor's opinions.
A questionnaire survey concerning informed consent was administered among Japanese physicians in Yamaguchi prefecture. The survey results showed that even though these Japanese physicians are willing to give their patients sufficient information to obtain informed consent, the discretion of the physician to provide information is still prevalent. The survey also revealed that Japanese physicians believe that information regarding the treatment to be administrated should be fully disclosed both in case when the treatment is still experimental and when it is established among specialists. Finally, the survey showed that despite the liberal attitude of the Japanese physicians toward informed consent, they are reluctant to make medical records accessible to the patients. It was found that when Japanese physicians were faced with special cases such as prior to administering high-risk diagnostic procedures, prior to disclosing the presence of cancer in their patients, or when faced with patients unwilling to receive treatment, the involvement of the patient's family members in the decision-making process was preferred so as not to aggravate the patient's emotional anxiety. With respect to cancer patients, the survey suggested that many Japanese physicians believe that cancer operations performed without informed consent from the patient should be legal. Finally, the survey concluded that, although the concept of individualized informed consent has been generally accepted among physicians, the involvement of family members in the decision-making process and a conservative attitude toward disclosure of information are still prevalent in Japan.
Adult↗
Assessment of physician-assisted death by members of the public prosecution in The Netherlands.
OBJECTIVES: To identify the factors that influence the assessment of reported cases of physician-assisted death by members of the public prosecution. DESIGN/SETTING: At the beginning of 1996, during verbal interviews, 12 short case-descriptions were presented to a representative group of 47 members of the public prosecution in the Netherlands. RESULTS: Assessment varied considerably between respondents. Some respondents made more "lenient" assessments than others. Characteristics of the respondents, such as function, personal-life philosophy and age, were not related to the assessment. Case characteristics, i.e. the presence of an explicit request, life expectancy and the type of suffering, strongly influenced the assessment. Of these characteristics, the presence or absence of an explicit request was the most important determinant of the decision whether or not to hold an inquest. CONCLUSIONS: Although the presence of an explicit request, life expectancy and the type of suffering each influenced the assessment, each individual assessment was dependent on the assessor. The resulting danger of legal inequality and legal uncertainty, particularly in complicated cases, should be kept to a minimum by the introduction of some form of protocol and consultation in doubtful or boundary cases. The notification procedure already promotes a certain degree of uniformity in the prosecution policy.
Attitude to Health↗