A woman whose husband became a sperm donor without her knowledge is seeking to change the law (reported in BioNews 671). Her claim is that a husband's sperm constitutes a 'marital asset', over which a wife should have some legally enforcable rights. Currently, there is no legal requirement for a spouse to consent to her partner's sperm donation. But perhaps there should be? After all, marriage is usually understood to entail a degree of shared decision-making. And since begetting children - with one's spouse - is traditionally a primary reason for tying the knot, can it really be compatible with marital mores for husbands to conceive children with other people?
Although there is a widespread support among U.S. physicians for proportionate palliative sedation, intentionally sedating dying patients to unconsciousness until death is neither the norm in clinical practice nor broadly supported for the treatment of primarily existential suffering.
Both medical and legal commentators contend that there is little legal risk for administering life-sustaining treatment without consent. In this Article, I argue that this perception is inaccurate. First, it is based on an outdated data set, primarily damages cases from the 1990s. More recent plaintiffs have been comparatively more successful in establishing civil liability. Second, the published assessments focus on too-limited data set. Even if the reviewed cases were not outdated, a focus limited to civil liability would still be too narrow. Legal sanctions have also included licensure discipline and other administrative sanctions. In short, the legal risks of providing unwanted life-sustaining treatment are not as rare, meager, and inconsequential as often depicted. In fact, sanctions for administering unwanted treatment are significant and growing.
End-of-life decision making is fraught with ethical challenges. Withholding or withdrawing life support therapy is widely considered ethical in patients with high treatment burden, poor premorbid status, or significant projected disability even when such treatment is not “futile.” Whether such withdrawal of therapy in the aftermath of attempted suicide is ethical is not well established in the literature. We provide a clinical vignette and propose criteria under which such withdrawal would be ethical. We suggest that it is appropriate to withdraw life support, regardless of the cause of the critical illness or disability, when the following criteria are met: (1) Surrogates request withdrawal of care and the adequacy of surrogates is confirmed, (2) an external reasonability standard is met, (3) passage of time, perhaps 72 hours, to allow certainty regarding the patient's wishes, and (4) psychiatric morbidity should be considered as grounds for withdrawal only in truly treatment-refract
The landmark decision of Gillick v West Norfolk Area Health Authority was a victory for advocates of adolescent autonomy. It established a test by which the court could measure children's competence with a view to them authorising medical treatment. However, application of the test by clinicians reveals a number of ambiguities which are compounded by subsequent interpretation of Gillick in the law courts. What must be understood by minors in order for them to be deemed competent? At what point in the consent process should competence be assessed? Does competence confer on minors the authority to refuse as well as to accept medical treatment? These are questions which vex clinicians, minors and their families. A growing number of commentators favour application of parts of the Mental Capacity Act 2005 to minors. In this paper, the limitations of this approach are exposed and more radical reform is proposed.
This paper evaluates the role being adopted by the European Court of Human Rights when confronted with claims arising from the extreme restriction of access to abortion services in certain Member States. It will be argued that in response to such claims the Court has been prepared to find that the suffering of the applicants can be captured as forms of rights violation, but it has sought to avoid taking a stance as to foetal life, leading it to adopt a highly deferential approach and to avoid the substantive issues at stake, of protection for female reproductive health, dignity and autonomy, in favour of focusing mainly on procedural ones. Having considered such issues as the missing gender-based aspects of the abortion jurisprudence, this paper concludes that its restrained and largely procedural stance has enabled the Court to provide some limited protection for women, on healthcare grounds, but that the opportunity to recognise that highly restrictive abortion regimes systematica...
This article examines the Health and Social Care Act 2012 and associated reforms to the National Health Service in England. It focuses on the Act's policy of making the NHS market more ‘real’, by both encouraging and compelling NHS bodies to act as ‘market players’. The article considers whether the reforms are compatible with the constitutional requirements of accountability for the provision of a public service such as the NHS. It argues that the reforms threaten accountability for three reasons: they make the Secretary of State for Health's relationship with the NHS more complex, they create opaque networks of non-statutory bodies which may influence NHS decision-making, and (especially in relation to competition) they ‘juridify’ policy choices as matters of law. Taken together, these arguments suggest that there is force in the claim that the reforms will contribute to ‘creeping’ – and thus unaccountable – privatisation of the NHS.
With the growing utilization of pacemakers, ICDs, and LVADs, physicians increasingly encounter patients who ask that their still-functioning devices get turned off. Most medical ethicists equate deactivation with the permissible withdrawals of other (typically external) interventions, but implanted cardiac-assist devices pose serious challenges to the well-accepted equivalence between initially refusing and later requesting the withdrawal of life-sustaining treatments. In order to eliminate residual uncertainties about the lawfulness of this peculiar form of physician-aid-in-dying, my article recommends legislative attention to the problem.
Under English law a child born disabled, for instance by Tay Sachs disease, as a result of negligent embryo selection by preimplantation genetic diagnosis (‘PGD’), can sue the relevant health professionals by means of a 1990 amendment to the Congenital Disabilities (Civil Liability) (‘CD’) Act 1976. By contrast, a second child conceived outside the in vitro fertilisation (‘IVF’) clinic, whose Tay Sachs is not detected in utero by means of prenatal diagnosis, can have no claim against the relevant health professionals due to the decision in McKay and Another v Essex Area Health Authority, which held that a child can have no claim for so-called “wrongful life”. This paper argues that this difference is anomalous and inequitable. It highlights the inadvertent way in which the legislative exception was crafted and shows that there are no relevant differences between the selection practices of PGD and PND that would in any event justify such different treatment. It critiques the English ...
In the Netherlands, euthanasia and physician-assisted suicide (PAS) are considered acceptable medical practices in specific circumstances. The majority of cases of euthanasia and PAS involve patients suffering from cancer. However, in 1994 the Dutch Supreme Court in the so-called Chabot-case ruled that “the seriousness of the suffering of the patient does not depend on the cause of the suffering”, thereby rejecting a distinction between physical (or somatic) and mental suffering. This opened the way for further debate about the acceptability of PAS in cases of serious and refractory mental illness. An important objection against offering PAS to mentally ill patients is that this might reinforce loss of hope, and demoralization. Based on an analysis of a reported case, this argument is evaluated. It is argued that offering PAS to a patient with a mental illness who suffers unbearably, enduringly and without prospect of relief does not necessarily imply taking away hope and can be eth...
No country has a blanket policy of mandatory psychiatric review but the specialty contributes in circumstances of exclusive mental disorder or when there is doubt regarding capacity and sound judgement. The absence of a mandatory role for psychiatrists means that reversible psychopathology may be missed. As a result, the patient's decision to end his/her life may be more informed by treatable mental disorder than by his/her lifelong preferences.
Physician-assisted suicide laws in Oregon and Washington require the person's current competency and a prognosis of terminal illness. In The Netherlands voluntariness and unbearable suffering are required for euthanasia. Many people are more concerned about the loss of autonomy and independence in years of severe dementia than about pain and suffering in their last months. To address this concern, people could write advance directives for physician-assisted death in dementia. Should such directives be implemented even though, at the time, the person is no longer competent and would not be either terminally ill or suffering unbearably? We argue that in many cases they should be, and that a sliding scale which considers both autonomy and the capacity for enjoyment provides the best justification for determining when: when written by a previously well-informed and competent person, such a directive gains in authority as the later person's capacities to generate new critical interests a...
Compromise on moral matters attracts ambivalent reactions, since it seems at once laudable and deplorable. When a hotly-contested phenomenon like assisted dying is debated, all-or-nothing positions tend to be advanced, with little thought given to the desirability of, or prospects for, compromise. In response to recent articles by Søren Holm and Alex Mullock, in this article I argue that principled compromise can be encouraged even in relation to this phenomenon, provided that certain conditions are present (which I suggest they are). In order to qualify as appropriately principled, the ensuing negotiations require disputants to observe three constraints: they should be suitably reflective, reliable and respectful in their dealings with one another. The product that will result from such a process will also need to split the difference between the warring parties. In assisted dying, I argue that a reduced offence of ‘compassionate killing’ can achieve this. I acknowledge, however, t...
This article is concerned with the practice of euthanasia in Belgium. Background information is provided; then major developments that have taken place since the enactment of the Belgian Act on Euthanasia are analysed. Concerns are raised about (1) the changing role of physicians and imposition on nurses to perform euthanasia; (2) the physicians' confusion and lack of understanding of the Act on Euthanasia; (3) inadequate consultation with an independent expert; (4) lack of notification of euthanasia cases, and (5) organ transplantations of euthanized patients. Some suggestions designed to improve the situation and prevent abuse are offered.
The term “physician-assisted suicide” usefully identifies a practice that is, and should be, a source of considerable controversy these days. Typically, the practice in question involves two crucial actors: a doctor and a terminally ill patient whose death is likely to occur within a short time. Knowing the condition of the patient and responding to the patient’s request, the doctor prescribes a drug that should cause the patient’s death shortly after it is taken. That’s the “physician-assisted” half of the practice. The “suicide” occurs, if it ever does, shortly after the patient ingests the drug. Physician-assisted suicide is legal in Oregon and Washington. Until very recently, it has been illegal in every other state, and claims to its being a federal constitutional right were rejected by the United States Supreme Court a dozen years ago in the Glucksberg and Quill decisions.1 But a recent development in Montana has altered the landscape somewhat. On December 31 of last year, the M
This article examines the reporting requirements in four jurisdictions in which assisted dying (euthanasia and/or assisted suicide) is legally regulated: the Netherlands, Belgium, Oregon and Switzerland. These jurisdictions were chosen because each had a substantial amount of empirical evidence available. We assess the available empirical evidence on reporting and what it tells us about the effectiveness of such requirements in encouraging reporting. We also look at the nature of requirements on regulatory bodies to refer cases not meeting the legal criteria to either prosecutorial or disciplinary authorities. We assess the evidence available on the outcomes of reported cases, including the rate of referral and the ultimate disposition of referred cases.
Background In the Netherlands, euthanasia is allowed if physicians adhere to legal requirements. Consultation of an independent physician is one of the requirements. SCEN (Support and Consultation on Euthanasia in the Netherlands) physicians have been trained to provide such consultations. Objective To study why euthanasia requests are sometimes judged not to meet requirements of due care and to find out which characteristics are associated with the SCEN physicians’ judgments. Methods During 5 years (2006, 2008-2011) standardized registration forms were used for data-collection. We used multilevel logistic regression analysis to assess the associations of characteristics and SCEN physicians’ judgments. Results We analyzed 1631 euthanasia requests, involving 415 SCEN physicians. Patient characteristics that were associated with a lower likelihood to meet due care requirements were: being tired with life, depression and not wanting to be a burden. Physical suffering and higher patien