One of the most challenging and rewarding roles for in-house hospital attorneys is serving as a member of their hospital’s Bioethics Committee. As a member of the Committee, an attorney assists in developing institutional ethics policies and guidelines, and also participates in ethics consultations involving disputes about patient care. Institutions such as the Author’s employer, Texas Children’s Hospital, promote open and honest communications between members of a patient’s health care team and the patient’s parents and family; however, when communications (...) break down, the Committee’s goal is to provide an objective forum where disputes can be discussed and hopefully resolved in a professional, ethical manner. (shrink)

Recent work in judgment and decisionmaking has stressed that institutions, like individuals, often rely on decisionmaking heuristics. But most of the institutional decisionmaking heuristics studied to date are highly firm- and industry-specific. This contrasts to the individual case, in which many heuristics are general-purpose rules suitable for a wide range of decision problems. Are there also general-purpose heuristics for institutional decisionmaking? In this paper, I argue that a number of methods recently developed for (...) class='Hi'>decisionmaking under deep uncertainty have a good claim to be understood as general-purpose decisionmaking heuristics suitable for a broad range of institutional decision problems. (shrink)

Times of heightened risk to the physical safety of their citizens inevitably cause democracies to recalibrate their institutions and processes and to reinterpret existing legal norms, with greater emphasis on security, and less on individual liberty, than in "normal" times. This article explores the ways in which the American courts have responded to the tension between civil liberties and national security in times of crises. This history illustrates that courts have rejected both of the two polar positions that characterize public (...) discourse on these issues. Civil libertarians argue that political bodies are too easily gripped by passions, hysteria, and self-interest in these times and that courts therefore ought to play a central role in protecting liberty. Executive unilateralists argue that the qualities that uniquely characterize the executive branch, such as decisiveness, access to information, and efficiency, must become so dominant in these moments that few checks, if any, should constrain executive prerogatives. Oddly, civil libertarians and executive unilateralists find implicit consensus in the view that, in times of war, courts have tended not to play a significant role in overseeing executive power. We argue to the contrary: historically, a significant constitutional tradition of judicial scrutiny in the United States during times of war does exist. But this scrutiny does not take the form of courts making first-order substantive judgments about the content of liberty or other claimed constitutional rights. Nor does it take the form of judicial assessment of how significant or credible the national security claims of the executive branch might be. Instead, judicial oversight has been focused on preserving the institutional structures and processes through which decisionmaking on these issues takes place. The judicial role has centered on the second-order question of whether the right institutional processes have been used to make the decisions at issue, rather than on what the content of the underlying rights ought to be. This approach has historically rejected or resisted most claims of executive unilateralism. When courts have upheld the government's actions, they have done so only after a judgment that Congress, as well as the executive, has endorsed the action. This approach has also rejected the civil libertarian framework. When courts find bilateral institutional endorsement, they have typically accepted the joint political judgment of how liberty and security tradeoffs ought to be made. By focusing on congressional endorsement of emergency measures, the courts have created a broad-based political accountability for the actions taken in the name of national security. We suggest that even if congressional endorsement is more apparent than real in some of these contexts, the judicial maintenance of this structure of rhetorical justifications sustains desirable understandings of political structure. Because the President and Congress draw from different political constituencies in a presidential rather than a parliamentary system, we also raise questions about whether the American judicial approach to these questions should be limited to political systems with separated executive and legislative powers. (shrink)

One of the important determinants of development during the transition to adulthood is the undertaking of social roles characteristic of adults, also in the area of finishing formal education, which usually coincides with beginning fulltime employment. In the study discussed in this paper, it has been hypothesized that continuing full-time education above the age of 26, a phenomenon rarely observed in Poland, can be considered as an unpunctual event that may be connected with difficulties in the process of identity formation. (...) Relationships between identity dimensions and identity statuses, and age and educational context were analyzed. 693 individuals aged 19-35 took part in the study. The participants attended three types of educational institutions: full-time university studies, part-time university studies, and full-time post-secondary school. Among the students of full-time university studies predictable dependencies, also in respect of highlevels of indicators of identity crisis and a high frequency of diffused identity occurrence, were observed. Such dependencies were not found in the group of full-time post-secondary school students. (shrink)

Current national and international guidelines for the ethical design and development of artificial intelligence (AI) and robotics emphasize ethical theory. Various governing and advisory bodies have generated sets of broad ethical principles, which institutional decisionmakers are encouraged to apply to particular practical decisions. Although much of this literature examines the ethics of designing and developing AI and robotics, medical institutions typically must make purchase and deployment decisions about technologies that have already been designed and developed. The primary problem facing (...) medical institutions is not one of ethical design but of ethical deployment. The purpose of this paper is to develop a practical model by which medical institutions may make ethical deployment decisions about ready-made advanced technologies. Our slogan is “more process, less principles.” Ethically sound decisionmaking requires that the process by which medical institutions make such decisions include participatory, deliberative, and conservative elements. We argue that our model preserves the strengths of existing frameworks, avoids their shortcomings, and delivers its own moral, practical, and epistemic advantages. (shrink)

This book is the most comprehensive treatment available of one of the most urgent - and yet in some respects most neglected - problems in bioethics: decision-making for incompetents. Part I develops a general theory for making treatment and care decisions for patients who are not competent to decide for themselves. It provides an in-depth analysis of competence, articulates and defends a coherent set of principles to specify suitable surrogate decisionmakers and to guide their choices, examines the value of advance (...) directives, and investigates the role that considerations of cost ought to play in decisions concerning incompetents. Part II applies this theoretical framework to the distinctive problems of three important classes of individuals, many of whom are incompetent: minors, the elderly and psychiatric patients. The authors' approach combines a probing analysis of fundamental issues in ethical theory with a sensitive awareness of the concrete realities of health care institutions and the highly personal and individual character of difficult practical problems. Its broad scope will appeal to health professionals, moral philosophers and lawyers alike. (shrink)

Cognitive science is transforming our understanding of the mind. New discoveries are changing how we comprehend not just language, but thought itself. Yet, surprisingly little of the new learning has penetrated discussions and analysis of the most important social institution affecting our lives-the law. Drawing on work in philosophy, psychology, anthropology, linguistics, and literary theory, Steven L. Winter has created nothing less than a tour de force of interdisciplinary analysis. A Clearing in the Forest rests on the simple notion that (...) the better we understand the workings of the mind, the better we will understand all its products-especially law. Legal studies today focus on analytic skills and grand normative theories. But, to understand how real-world, legal actors reason and decide, we need a different set of tools. Cognitive science provides those tools, opening a window on the imaginative, yet orderly mental processes that animate thinking and decisionmaking among lawyers, judges, and lay persons alike. Recent findings about how humans actually categorize and reason make it possible to explain legal reasoning in new, more cogent, more productive ways. A Clearing in the Forest is a compelling meditation on both how the law works and what it all means. In uncovering the irrepressibly imaginative, creative quality of human reason, Winter shows how what we are learning about the mind changes not only our understanding of law, but ultimately of ourselves. He charts a unique course to understanding the world we inhabit, showing us the way to the clearing in the forest. (shrink)

The most widely repeated retributivist argument against the utilitarian theory of punishment is that utilitarianism permits punishment of the innocent. While defenders of utilitarianism have shown that a publicly announced policy of punishing the innocent is unlikely to serve utility, critics have insisted that utilitarianism morally obliges officials to deceive the public by framing the innocent. Yet philosophers and legal scholars have heretofore failed to test this claim against the writings of the theory's originators. We directly examine the writings of (...) Jeremy Bentham and other eighteenth and nineteenth century utilitarians and demonstrate that the originators of utilitarian penology clearly opposed both punishment of the innocent and deception of the public. We argue that utilitarianism originated as a legal theory that emphasized several institutional conditions for the public pursuit of utility, including security of person and property, legality, legislative supremacy, democratic accountability, publicity and transparency. These institutional conditions would preclude both systematic and ad hoc framing of the innocent. We show that the original utilitarians considered individuals incompetent to determine and pursue the public welfare, and that the contemporary conception of utilitarianism as an ethical standard governing individuals is a modern innovation. Bentham's theory of punishment did not derive from any general ethical theory. Bentham, like his chief forebears Hume, Helvetius and Beccaria, thought of public utility as a standard of value for public action, such as legislation. He assumed that private action was ruled by self-interest (i.e. private utility) so that there was little point in directing arguments about the general welfare to individual ethical actors. In assessing public action, Bentham was far less concerned about consequences than has generally been supposed and far more concerned about process. He identified utility with security of expectations and the rule of law. As a consequence, he endorsed public actions that could be seen to have emerged from a rational and well-informed debate about their consequences for the public welfare. Utility was not a definition of the good or a guide to conscience, but a standard designed for use in public, deliberative debate. Utilitarianism was not so much a philosophical theory as a rhetorical practice, understood as a transparent language of analysis and argument for use in political deliberation.We elaborate the procedural conditions presupposed by utilitarian discourse, beginning with Bentham's commitment to a conception of legality involving legislative promulgation of formal rules faithfully applied by rigidly constrained bureaucrats and judges. Next, we demonstrate Bentham's commitment to democratic representation of the public in devising legislation. Finally, we emphasize Bentham's commitment to publicity in government decisionmaking. Utilitarian policy required public scrutiny of all decisions and the information and reasons considered in making them. In sum, Bentham's utilitarianism was primarily concerned with the problem of how to design government so that it could accurately identify and faithfully pursue the public good while being openly seen to do so. It follows that Bentham's utility principle does not require him to endorse deceiving the public and framing an innocent person. (shrink)

In Roper v. Simmons (2005) the United States Supreme Court announced a paradigm shift in jurisprudence. Drawing specifically on mounting scientific evidence that adolescents are qualitatively different from adults in their decision-making capacities, the Supreme Court recognized that adolescents are not adults in all but age. The Court concluded that the overwhelming weight of the psychological and neurophysiological data regarding brain maturation supports the conclusion that adolescents are qualitatively different types of agents than adult persons. The Supreme Court further solidified (...) its position regarding adolescents as less than fully mature and responsible decisionmakers in Graham v. Florida (2010) and Miller v. Alabama (2012). In each case, the Court concluded that the scientific evidence does not support the conclusion that children under 18 years of age possess adult capacities for personal agency, rationality, and mature choice. This study explores the implications of the Supreme Court decisions in Roper v. Simmons, Graham v. Florida, and Miller v. Alabama for the “mature minor” standard for medical decision making. It argues that the Supreme Court’s holdings in Roper, Graham, and Miller require no less than a radical reassessment of how healthcare institutions, courts of law, and public policy are obliged to regard minors as medical decisionmakers. The “mature minor” standard for medical decision making must be abandoned. (shrink)

Abstract:Recently the scope of protections afforded those healthcare professionals and institutions that refuse to provide certain interventions on the grounds of conscience have expanded, in some instances insulating providers (institutional and individual) from any liability or sanction for harms that patients experience as a result. With the exponential increase in the penetration of Catholic-affiliated healthcare across the country, physicians and nurses who are not practicing Catholics are nevertheless required to execute documents pledging to conform their patient care to the (...) Ethical and Religious Directives for Health Care Services as a condition of employment or medical staff privileges. In some instances, doing so may result in patient morbidity or mortality or violate professional standards for respecting advance directives or surrogate decisionmaking. This article challenges the ethical propriety of such institutional mandates and argues that legal protections for conscientious refusal must provide redress for patients who are harmed by care that falls below the prevailing clinical standards. (shrink)

Many-minds arguments are flooding into legal theory. Such arguments claim that in some way or another, many heads are better than one; the genus includes many species, such as arguments about how legal and political institutions aggregate information, evolutionary analyses of those institutions, claims about the benefits of tradition as a source of law, and analyses of the virtues and vices of deliberation. This essay offers grounds for skepticism about many-minds arguments. I provide an intellectual zoology of such arguments and (...) suggest that they are of low utility for legal theory. Four general and recurring problems with many-minds arguments are as follows: (1) Whose minds?: The group or population whose minds are at issue is often equivocal or ill-defined. (2) Many minds, worse minds: The quality of minds is not independent of their number; rather, number endogenously influences quality, often for the worse. More minds can be systematically worse than fewer because of selection effects, incentives for epistemic free-riding, and emotional and social influences. (3) Epistemic bottlenecks: In the legal system, the epistemic benefits of many minds are often diluted or eliminated because the structure of institutions funnels decisions through an individual decisionmaker, or a small group of decisionmakers, who occupy a kind of epistemic bottleneck or chokepoint. (4) Many minds vs. many minds: The insight that many heads can be better than one gets little purchase on the institutional comparisons that pervade legal theory, which are typically many-to-many comparisons rather than one-to-many. (shrink)

Cass Sunstein and Richard Thaler's proposal that social and legal institutions should steer individuals toward some options and away from others-a stance they dub "libertarian paternalism"-has provoked much high-level discussion in both academic and policy settings. Sunstein and Thaler believe that steering, or "nudging," individuals is easier to justify than the bans or mandates that traditional paternalism involves. -/- This Article considers the connection between libertarian paternalism and the regulation of reproductive choice. I first discuss the use of nudges to (...) discourage women from exercising their right to choose an abortion, or from becoming or remaining pregnant. I then argue that reproductive choice cases illustrate the limitations of libertarian paternalism. Where choices are politicized or intimate, as reproductive choices often are, nudges become not much easier to justify than traditional mandates or prohibitions. Even beyond the context of reproductive choice, it is not obvious how much easier nudges are to justify than bans or mandates. -/- Part I of this Article briefly introduces Sunstein and Thaler's libertarian paternalism. Part II then turns to the context of reproductive choice. Part II.A reviews restrictions on the right to choose an abortion-particularly post-Casey regulations such as waiting periods, requirements that women receive certain types of information, and requirements that women undergo ultrasound-that pitch themselves as steering choice without entirely closing off the right to choose an abortion. This distinction between nudges and prohibitions echoes Sunstein and Thaler's proposals, but works to subordinate women's choices to the judgment of (often male) experts and administrators-hence my term "libertarian patriarchalism." Part II.B reviews efforts to nudge women-particularly teenagers, HIV-positive women, and others thought to be unsuitable mothers-to avoid pregnancy. -/- Part III considers the normative implications of nudging reproductive decisions. In Part III.A, I argue that the political nature of reproductive choices presents a problem for nudges. I do so by considering a parallel with voting rights. Empirical research shows that voters are more likely to choose the candidate listed first on the ballot. Yet we do not empower the administrator in charge of ballot design to choose a default rule that nudges individuals toward the candidate he sincerely believes would promote choosers' welfare. Given the political nature of reproductive choices, a policymaker's attempting to nudge reproductive decisionmaking in the direction he prefers-or indeed in any direction-fails to show adequate respect for the chooser's agency. In Part III.B, I offer an argument that targets the use of nudges in the context of pregnancy. Finally, in Part III.C, I argue that nudges do not merely add choices to an existing menu, but change the substantive choices available to individuals and thereby impose more-than-trivial costs on them. I conclude by exploring the implications of my arguments for nudges more generally. (shrink)

In this brief introduction, I shall rather reflect, from a biographer’s viewpoint, on the significance of Discretion for our understanding of the trajectory of Hart’s ideas and on the significance of his year at Harvard. I shall then move on to consider the intriguing question of why Hart did not subsequently publish or build on some of the key insights in the paper itself. Here I highlight the fact that, almost uniquely in Hart’s work, Discretion features a notable emphasis on (...) the significance of institutional factors in our understanding of the nature of legal decisionmaking; and I argue that Hart’s failure fully to develop this insight in the essay, or to build on it in his subsequent work, derives from the fact that such a development would have necessitated a diversion from the philosophical issues that were his core intellectual concern, and moreover would have presented certain dangers to his conception of legal positivism. I shall conclude by considering what contribution the essay makes to our overall interpretation and evaluation of Hart’s legal philosophy. (shrink)

A focus on the lawmaking process, I submit, permits us to explore a particular dimension of justice, namely the relationship between law and liberty. Laws that reflect the arbitrary whims of the lawmaker are presumptively unjust, because they constrain liberty for no good reason. A strategy for making arbitrary laws less likely involves recognizing checks on the lawmaker's powers and grounding those checks in processes that allow the governed to express their disapproval. The system of checks and balances employed in (...) the U.S. Constitution embodies this strategy, although reasonable people can debate its efficacy. As A.O. Hirschman observed, regimes that permit free movement of persons and property similarly restrict the force of arbitrary rules by allowing exit from unwanted restrictions. I want to inquire into the role of checks in international lawmaking. At first blush, it might appear that the fundamental principle of state consent provides all the checking that international lawmaking needs. This principle maintains that a state (and by extension, its subjects) can be bound by a rule of international law only if that state manifests its consent to the rule. As long as states have a real choice, itself subject to internal checks on official decisionmaking, the adoption of the rule should meet basic criteria of procedural justice. Indeed, the correlate of this principle—that each state has a veto over the adoption of international law, at least as applied to itself and its subjects—suggests that international lawmaking poses less of a threat to liberty than do conventional municipal lawmaking processes based on majority rule. One might think that, as a result of this principle, no rule will attain the status of international law unless its adoption makes some states better off and no state worse off. This first impression, however, is wrong. First, international lawyers argue for the existence of jus cogens norms that apply regardless of state consent. Second, the concept of state consent is artful, and opportunistic decisionmakers have some freedom to construe consent in ways that circumvent conventional checking processes. Third, political and economic coercion can reduce state consent to a meaningless formality. I discuss each of these points in turn. Once state consent ceases to constrain international lawmaking, the question role of alternative checks to protect liberty looms. Under what circumstances does the international lawmaking process as currently constituted present a threat of arbitrary force? What kinds of resistance to the results of international lawmaking can process values justify? I address these questions in three steps. First, I explore whether international law does carry a threat of coercion. If not, concerns about arbitrary restrictions of liberty are misplaced. Second, I discuss the problems arising from delegations of lawmaking authority to international institutions, with specific reference to the Rome Statute and the International Criminal Court. Third, I discuss the process-value issues associated with judicial lawmaking. None of these concerns justifies blanket opposition to international lawmaking. Rather, those interested in making and enforcing international rules need to grapple with these issues and provide another layer of justification for their efforts. a Footnotesa I am indebted to Ken Abbott, Jean Cohen, Larry Helfer, Robert Hockett, Sean Murphy, Phil Nichols, Ed Swaine, Joel Trachtman, the other contributors to this volume, and participants in a workshop at the University of Virginia School of Law for comments and criticism. Shortcomings are mine alone. (shrink)

Public choice or rational politics differs from other approaches to the study of political behavior in that it builds on models in which rational individuals seek to advance their own interests. This five-part volume surveys the main ideas and contributions of the field. It contains twenty-five essays written by thirty scholars, both economists and political scientists, from North America and Europe. Part I discusses the nature and justification for the existence of government and various forms it can take, including mixed, (...) private, and public institutions, international organizations, federalisms, and constitutional governments. Part II examines the properties of different voting rules and preference aggregation procedures. Part III explores multiparty systems, interest groups, logrolling and political business cycles. The individual decisionmaker is the focus of Part IV, with surveys of the experimental literature on individual behavior, and why people vote as they do. The final section applies public-choice reasoning to bureaucracy, taxation, and the size of government. (shrink)

This article outlines a new approach to answering the foundational question in democratic theory of how the boundaries of democratic political units should be delineated. Whereas democratic theorists have mostly focused on identifying the appropriate population-group – or demos – for democratic decisionmaking, it is argued here that we should also take account of considerations relating to the appropriate scope of a democratic unit’s institutionalized governance capabilities – or public power. These matter because democratically legitimate governance is produced not (...) only through the decision-making agency of a demos, but also through the institutionally distinct sources of political agency that shape the governance capabilities of public power. To develop this argument, the article traces a new theoretical account of the normative and institutional sources of collective agency, political legitimacy, and democratic boundaries, and illustrates it through a democratic reconstruction of the classical body politic metaphor. It further shows how this theoretical account lends strong prescriptive support to pluralist institutional boundaries within democratic global governance. (shrink)

This article outlines a new approach to answering the foundational question in democratic theory of how the boundaries of democratic political units should be delineated. Whereas democratic theorists have mostly focused on identifying the appropriate population-group – or demos – for democratic decisionmaking, it is argued here that we should also take account of considerations relating to the appropriate scope of a democratic unit’s institutionalized governance capabilities – or public power. These matter because democratically legitimate governance is produced not (...) only through the decision-making agency of a demos, but also through the institutionally distinct sources of political agency that shape the governance capabilities of public power. To develop this argument, the article traces a new theoretical account of the normative and institutional sources of collective agency, political legitimacy, and democratic boundaries, and illustrates it through a democratic reconstruction of the classical body politic metaphor. It further shows how this theoretical account lends strong prescriptive support to pluralist institutional boundaries within democratic global governance. (shrink)

This report is about ethical thinking in the field of health and health care. But it is no abstract philosophical tract. It is designed to be of practical help to those struggling with the complex questions of allocating resources in health care and to encourage a wider involvement at all levels in health debates. The questions it raises stimulate new thinking about today's institutional structures. As we proceeded with our work, we became aware that it is easier to state (...) problems than to solve them. However, we were also aware of the opposite danger of oversimplification implicit in the view that there was a moral calculus to which decisionmakers could turn when they were confronted by an ethical problem in the allocation of resources, and which would yield mechanical solutions to human problems. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Ethics Committees in HospitalsPat Milmoe McCarrick (bio)(Literature about hospital ethics committees has grown enormously since Scope Note 3 first appeared. This update provides new information about resources and documents now available while continuing to include important earlier sources.)Hospital ethics committees increasingly have taken hold in the United States since 1983, when the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research encouraged their (...) creation in its report, Deciding to Forego Life-Sustaining Treatment (III, 1983, p. 5).The President's Commission report (pp. 160-64) suggested the following roles for ethics committees: 1) review of treatment decisions made on behalf of incompetent, terminally ill patients; 2) review of medical decisions having ethical implications with the option, in cases of disagreement, to refer cases to a court with proper jurisdiction; 3) provision of social, psychological, spiritual, or other counseling for patients, family members, physicians, or other hospital staff; 4) establishing guidelines regarding treatment or other medical decisions; and 5) sponsoring or conducting educational programs to inform all concerned, including the public, about ethical problems in medicine.No exact count of these committees is available. According to estimates cited by Donald F. Phillips, managing editor of Hospital Ethics, about two-thirds to three-fourths of hospitals with more than 200 beds have ethics committees, as do about one-third of hospitals under 200 beds. He thinks that about half of the 6,000 hospitals in the United States now have working ethics committees.Several journal articles and a court decision in the late 1970s influenced their formation. A 1975 journal article by pediatrician Karen Teel (VII A) urged the use of hospital ethics committees to provide for dialogue in individual care situations as an appropriate sharing of responsibility. Another early article suggested that beyond parents and treating physicians, a "disinterested," mixed lay and medical committee could consider cases about defective newborns to improve the ethical decisionmaking process (VII A, Robertson and Fost, 1976). Three 1977 discussions in the Hastings Center Report highlighted this new concept (VII A, Levine; Shannon; Veatch).Produced at the National Reference Center for Bioethics Literature, Kennedy Institute of Ethics, Georgetown University, Washington, DC 20057. It is supported by funds provided under grant number LM04492 from the National Library of Medicine, National Institutes of Health. Literature available through June 1992 is represented in this Scope Note. [End Page 285]The court decision was the March 31, 1976 ruling by the New Jersey Supreme Court in the Karen Quinlan case. The parents of a young woman in a persistent vegetative state had requested that she be taken off a respirator. The court designated a "prognosis" role for the hospital ethics committee and stipulated that the committee must concur that the patient will never return to a "cognitive, sapient state" before the life-support system can be withdrawn (In the Matter of Karen Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976)). Shortly after the Quinlan decision, Massachusetts General Hospital's Clinical Care Committee created an ad hoc subcommittee (a psychiatrist, a legal counsel, an ICU nurse, an oncologist/internist, a surgeon, and a lay person who had recovered from serious cancer disease) which looked at 15 cases. Based on the subcommittee's success, establishment of a permanent committee to review treatment of the terminally ill was recommended by the critical care committee (VII A, Clinical Care Committee 1976).In its 1984 Baby Doe rules, the federal government recommended establishment of infant care review committees, which promoted the growth of hospital ethics committees (VII C, Povar 1991). In July 1987 Maryland became the first state to require by law that hospitals establish patient care advisory committees to offer advice about choices available in the care of life-threatening illnesses; this requirement was extended to nursing homes in 1990 [codified as amended at Md. Health-Gen. Code Ann. Sections 19-370 to -374 (1990)] (VII C, Hollinger 1991).Recently the role for these committees has been noted in the Accreditation Manual for Hospitals, 1992 Supplement (p. 10, Patient Rights, Section RI. 1.1.6.1) of the Joint Commission... (shrink)

Over the past two decades ethics committees have proliferated in healthcare institutions across the country. Catalysts for this growth include the endorsement of ethics committees by the New Jersey Supreme Court in the Quinlan case, by the President's Commission for the Study of Ethical Problems in Medicine and Biomedical Research in its report entitled Deciding to Forgo Life Sustaining Medical Treatment, by the U.S. Department of Health and Human Services in its 1985 “Baby Doe” regulations, by numerous other courts in (...) treatment decisionmaking opinions issued after Quinlan, and more recently by the Joint Commission on Accreditation of Healthcare Organizations. (shrink)

On the basis of a chronological approach of the decision-making process with regard to the recognition of the PRC we concluded in an analytical part that the decision-making process was merely of the "hypo-institutional" type. Afterwards, we examined the effectivity of the Belgian policy in comparison with the international scientific literature on recognition and with the practice of other small European states. We concluded the non-recognition policy had been ineffective. The relation between "hypo-institutional" decision-making on the one hand (...) and ineffective public policy on the other hand is just one element within a broader research-project : "The effectivity of public policy according to type of decisionmaking". (shrink)

This is a case that speaks directly to the issue of an organization's mission. As private insurance and government reimbursement decline, the economic pressures facing healthcare systems both public and private continue to increase. For many institutions it is no longer a question of prospering but surviving. As this case accurately describes, survival is dependent on continually reducing costs and maximizing reimbursement. These strategies often include reducing the number of nonpaying or charity cases while attempting to remain faithful to the (...) mission of the organization, whether this be a religious or civic mission. The ethics committee, although it may be an appropriate forum for discussions to begin concerning this patient, is not the appropriate decisionmaking body regarding whether this gentleman receives the treatment he needs. That task should fall to whichever group defines or articulates the mission and values for the organization, normally the hospital's administration in concert with the board of directors or trustees. (shrink)

The roots of the savings and loan debacle lie in overregulation of the industry resulting from the attempt to promote widespread home ownership. Actions by policymakers unable to admit earlier mistakes compounded the problem throughout the 1980s. Attempts by political decisionmakers to shift blame to the private sector, coupled with a failure to acknowledge the institutional pressures that led congressmen and S & L owners and managers to act as they did, leave taxpayers vulnerable to the repetition of S (...) & L‐type crises in other industries. (shrink)

Definition of the problem: In health care institutions caregivers from different cultures treat patients who themselves may come from different cultural backgrounds. The ethical impact of this issue is how in spite of these cultural differences mutual understanding can be achieved. Modern health care systems must react to this multicultural challenge explaining: what does universality of the medical task mean, what are the consequences of demographic change, how to deal with the multicultural work force of the modern health care facilities, (...) and how one must differentiate between universal and variable elements of the health care delivery. The following questions are discussed: 1. Which aspects of medicine require consideration of the multicultural structures? 2. Which medical fields must especially integrate multicultural perspectives? 3. How the patient's cultural context can be taken into account.Arguments: These levels of the problem are illustrated by the through the case of a German University hospital which presents a difficult decision making process.Conclusion: Three requirements result from this: 1. to work out the differences of behaviour, 2. to define the differences of value systems of both parts, the patient and the caregiver, and 3. to agree on mutual goals and values. (shrink)

Hospital ethics committees (HECs) have historically been instituted top-down, often ignoring the needs of the professionals and patients who might use their services. Seventy-four physicians and 123 nurses participated in a hospital-wide needs assessment designed to [1] identify their perceptions of the functions of the HEC, [2] determine which services and educational programs were most desired, and [3] explore which forums were most preferred for discussion of ethical problems. Results indicated that utilization of the HEC focused around five areas of (...) concern: withdrawing/withholding treatment, rationing and control of health care, children's rights, role of the patient and family in decisionmaking, and disagreements about treatment. Physicians and nurses differed widely in their attitudes. Perceptions about the appropriate functions of the HEC strongly influenced decisions regarding which HEC services to use. Needs assessment can play an important role in developing HEC goals and designing programs that meet the needs of professionals. (shrink)

User participation is a critical ingredient for relevant technology development, whether in agriculture or industry. This has long been recognized in private sector R&D firms. In most public sector agricultural research organizations in developing countries, however, systematic involvement of farmers, especially poor farmers, in research has been weak. These farmers are rarely powerful or well organized enough to bring pressure to bear on government agencies to respond to their needs and priorities. Farmer-responsive research methods, such as on-farm research, farming systems (...) research, and farmer participatory research, have been introduced into research organizations to compensate for the lack of mechanisms for bringing farmers' views into the formulation of research priorities and agendas. The impact of these approaches in achieving this objective, however, has been less than hoped for.Insufficient attention to the political and institutional dimensions of developing client-responsive research is a major reason for this lack of impact. To bring about permanent change, farmer-responsive research methods need to be reinforced by changes in the balance of power between research and its clients and in the constellation of decisionmakers responsible for formulating research agendas. Participatory planning methods applied at the level of research programs provide new opportunities for involving farmers in decision-making about program priorities and for systematically incorporating information about client's needs. Recent experiments with strengthening farmers' associations and linking them with research organizations suggest new opportunities for increasing farmers' ability to express demand, act as an external pressure group, and serve as viable partners with research organizations. (shrink)

Introduction to the Institutional Logics Perspective -- Precursors to the Institutional Logics Perspective -- Defining the Inter-institutional System -- The Emergence, Stability and Change of the Inter-institutional System -- Micro-Foundations of Institutional Logics -- The Dynamics of Organizational Practices and Identities -- The Emergence and Evolution of Field-Level Logics -- Implications for Future Research.

ABSTRACT:Cities are struggling to balance the moral imperatives of sustainable development, with equity and social justice often ignored and negatively impacted by climate change mitigation and adaptation. Yet, the nature of these impacts on social justice has not been comprehensively investigated and little ethical guidance exists on how to better promote social justice in urban climate change planning practice. This article addresses the normative question: How should urban climate change planning advance social justice? It gathers empirical literature documenting the inclusivity (...) and equity impacts of urban climate change planning and thematically analyses that literature for dimensions of social justice drawn from philosophical and urban justice theory. Study findings demonstrate that four characteristics of climate change planning in cities—underlying neoliberal ideology, unequal treatment, green gentrification, and exclusion from decisionmaking—comprise, create, or worsen social injustices across six dimensions. These characteristics are often interconnected and inseparable. Where neoliberal ideology guides urban climate change planning, the other three characteristics frequently occur as well. The article concludes by arguing that, at a minimum, urban planners and climate planners have an obligation of justice to avoid undertaking climate change planning that exhibits any of the four characteristics and to address injustices generated where planning has such characteristics. It further suggests that planners' negative obligations likely extend beyond this because the literature review revealed gaps in existing empirical data on the equity impacts of urban climate change planning. (shrink)

A New York court recently struck down state Office of Mental Health regulations governing research involving subjects with impaired decisionmaking capacity. The court held that neither incapacitated adults nor minors could participate in any research protocol that contained a nontherapeutic element, irrespective of possible benefits to the subject or the importance of the knowledge to be gained. Although the decision rested on a technical point of law and dealt only with psychiatric research, the court's holding has significantly broader implications.

In lieu of an abstract, here is a brief excerpt of the content:Nursing Ethics:A Selected Bibliography, 1987 to PresentDoris Mueller Goldstein (bio)The ethics of nursing is emerging as a discipline distinct from bioethics or medical ethics. Although these areas have many concerns in common, nurses are demonstrating that their perspective can make a unique contribution to ethical debate.An especially dynamic area of discussion within nursing ethics is the philosophy of caring. The work on moral development by Harvard educator Carol Gilligan (...) in her book, In a Different Voice, is pivotal in this discussion (IV B, Cooper 1989). Jean Watson, a nurse at the University of Colorado Center for Human Caring, also has written extensively on the philosophy of caring. She states that "an ethic of caring has a distinct moral position: caring is attending and relating to a person in such a way that the person is protected from being reduced to the moral status of objects...." (I, Watson 1988).Even as the philosophy of caring becomes more predominant, however, nurses today are often drawn away from the caring role by forces prevalent in the modern hospital. First, modern technology can divert the nurse's attention away from the patient and toward the operation of complex equipment, and second, large hospitals are often managed as bureaucracies (I, Fitzpatrick 1988).A recent study examined the frequency and seriousness of ethical issues encountered in nursing practice (IV A, Berger 1991). A survey instrument that included 32 potential ethical issues was developed by the authors. Respondents were asked to identify what kinds of issues concerned them and with what frequency, and to indicate what resources were used to cope with these dilemmas. The study found that nurses were frequently faced with inadequate staffing, heroic measures for prolonging life, inappropriate resource allocation, situations where patients are being discussed inappropriately, and coping with irresponsible activity of colleagues.The variety of ethical dilemmas encountered on a daily basis by nurses and their expressed interest in developing a moral grounding for the profession of [End Page 177] nursing, along with increased attention to ethical issues in nursing education have led to an explosion in the literature on these topics. In the preparation of this bibliography over 1,000 citations were retrieved in computer searches of various databases: BIOETHICSLINE, MEDLINE and CATLINE (National Library of Medicine), CINAHL (Current Index to Nursing and Allied Health Literature), BOOKS IN PRINT PLUS, and ETHX (the online public access catalog for articles at the National Reference Center for Bioethics Literature). What is offered here is a small sampling of that literature. Books and special issues of periodicals are briefly annotated, but citations to articles are simply arranged by broad subject, and within that, alphabetically by author. The subcategories reflect the topics receiving the most discussion in current literature.This bibliography updates "The Ethics of Nursing: A Selected Bibliography," by Doris Mueller Goldstein, which covered the earlier literature and was published as an appendix to Ethical Decision Making in Nursing Administration (I, Silva 1990).I. BooksAustralian Nursing Federation. Ethics: Nursing Perspectives, vol. 2. North Fitzroy, Victoria: The Federation, 1989. 102 p. (Publisher's address: 373-375 St. Georges Road, postal code 3068.) The National Professional Development Committee of Australia fostered the publication of a second volume of papers on nursing ethics. Articles cover patients' rights, ethical theory in decisionmaking behaviors, the nurse and the DNR order, and whistleblowing. Several appendices represent difficult-to-obtain documents, such as the RANF (Royal Australian Nursing Federation) position statements on terminal care, AIDS and occupational health, professional practice problems, and conscientious objection.Bandman, Elsie L., and Bandman, Bertram. Nursing Ethics Through the Life Span. 2nd ed. Norwalk, CT: Appleton & Lange, 1990. 288 p. Following an extensive review of the moral foundations of decision making in nursing, the authors take the reader through a chronology of nursing ethics issues as they occur in the human life span, beginning with the procreative family period and concluding with the end of life. Each chapter contains discussion questions—an aid to educators using this as a textbook.Benjamin, Martin, and Curtis, Joy. Ethics in Nursing. 2nd ed. New York: Oxford University Press, 1986. 206 p. An overview of the nature of ethical inquiry and theory is followed by... (shrink)

Family members are widely believed to be the best decisionmakers for those with brain injuries, but the rehabilitation process does not in fact give them that authority.

This paper evaluates Sara Goering’s recent attempt to use the Rawlsian notion of the veil of ignorance as a tool for distinguishing permissible from impermissible forms of genetic engineering. I argue that her article fails due to a failure to include vital contextual information in the right way.

This book is a small handbook designed to give Institutional Review Board (IRB) members the information they need to protect the rights and welfare of research subjects in a way that is both effective and efficient. The chapters of this book are short and to the point. Topic-specific chapters list the criteria IRB members should use to determine how to vote on specific kinds of studies and offer practical advice on what IRB members should do before and during full-committee (...) meetings. (shrink)

This CQ department is dedicated to bringing noted bioethicsts together in order to debate some of the most perplexing contemporary bioethics issues. You are encouraged to contact department editor, D. Micah Hester, UAMS/Humanities, 4301 W. Markham St. #646, Little Rock, AR 72205, with any suggestions for debate topics and interlocutors you would like to see published herein.

Institutional economics and discourse theory stand unconnected next to each other, in spite of the fact that they both ask for the legitimacy of institutions (normative) and the functioning and effectiveness of institutions (positive). Both use as theoretical constructions rational individuals and the concept of consensus for legitimacy. Whereas discourse theory emphasizes the conditions of a legitimate consensus and could thus enable institutional economics to escape the infinite regress of judging a consensus legitimate, institutional economics has a (...) tested social science paradigm (rational choice) of explaining and predicting the functioning of institutions. The article outlines a theoretical synthesis of the two theories by finding points in common and possibilities of fruitful combinations concerning the problem of legitimacy, institutional design and effectiveness of legal norms. (shrink)

In times of climate change and public debt, a concern for intergenerational justice should lead us to have a closer look at theories of intergenerational justice. It should also press us to provide institutional design proposals to change the decision-making world that surrounds us. This book provides an exhaustive overview of the most important institutional proposals as well as a systematic and theoretical discussion of their respective features and advantages. It focuses on institutional proposals aimed at taking (...) the interests of future generations more seriously, and does so from the perspective of applied political philosophy, being explicit about the underlying normative choices and the latest developments in the social sciences. It provides citizens, activists, firms, charities, public authorities, policy-analysts, students, and academics with the body of knowledge necessary to understand what our institutional options are and what they entail if we are concerned about today's excessive short-termism. (shrink)

It is widely acknowledged that categories play significant roles in the appreciation of artworks. This paper argues that the correct categories of artworks are institutionally established through social processes. Section 1 examines the candidates for determining correct categories and proposes that this question should shift the focus from category membership to appreciative behaviour associated with categories. Section 2 draws on Francesco Guala’s theory of institutions to show that categories of artworks are established as rules-in-equilibrium. Section 3 reviews the explanatory benefits (...) of this institutional theory of the correct category. [Winner of the 2022 Debates in Aesthetics Essay Prize]. (shrink)

This paper provides an exploratory comparative assessment of the institutional pressures influencing corporate social responsibility in a developed country, UK, vs. a developing country, Brazil, based on a survey of different actors. Information on sustainability concerns, organizational strategies and mechanisms of pressure was collected through interviews with environmental regulatory agencies, financial institutions, media and non-governmental organizations. Our results confirm that the more advanced awareness and CSR responsiveness in the UK is a consequence of a predominance of coercive and normative (...) forces on the organizational field. The institutional forces tend to build a Brazilian organizational field that is relational based and risk intensive. The findings lend support to the view that CSR responses are unlikely to be easily transformed into uniform standardized practices across the globe. This paper contributes to a collective understanding of the organizational field and a common template for CSR in the context of developed and developing countries. (shrink)

This essay has two aims: The first is to demonstrate that the basic conceptual framework of principal/agent theory can be fruitfully applied to decisionmaking in health care and in such a way as to facilitate the more efficient pursuit of the moral values of individual well-being and autonomy which health care is supposed to promote. The second is to show that this application results in an enrichment of principal/agent theory itself, by removing some of the limitations on the theory (...) that are valid only for the more exclusively self-interested, commercial contexts to which the theory is usually applied. (shrink)

Patients with disorders of consciousness after severe brain injury need surrogate decision makers to guide treatment decisions on their behalf. Formal guidelines for surrogate decisionmaking generally instruct decision makers to first appeal to a patient’s written advance directive, followed by making a substituted judgment of what the patient would have chosen, and lastly, to make decisions according to what seems to be in the patient’s best medical interests. Substituted judgment is preferable because it is taken to preserve patient autonomy, (...) by using a patient’s past wishes and values to reconstruct what they would have chosen for themselves. In this paper, the author argues that for a certain population of patients, the standard interpretation of substituted judgment cannot ensure the preservation of patient autonomy. Patients with “covert awareness” may continue to have values and an authentic sense of self, which may differ from their past values and wishes. Accordingly, surrogate decision makers should make decisions based on how the patient is likely to experience their condition in the present, rather than their past wishes and values. (shrink)