ZusammenfassungDer Beitrag bringt Gründe für die These vor, dass aktive Sterbehilfe – die Tötung eines einwilligungsfähigen Patienten auf sein ausdrückliches, ernsthaftes und stabiles Verlangen hin – unter bestimmten Umständen moralisch erlaubt ist und rechtlich erlaubt sein sollte. Autonome Personen haben ein zentrales, von ihrem Anspruch auf Wahrung ihrer Menschenwürde geschütztes Interesse daran, „ihren” Tod sterben zu können. Aus diesem geschützten Interesse resultieren Dispositionsbefugnisse über das eigene Sterben, die auch das Recht beinhalten, sich hierzu der freiwillig geleisteten Hilfe Dritter zu bedienen. (...) Soweit das Argument eines möglichen Missbrauchs erlaubter aktiver Sterbehilfe ernst zu nehmen ist, stehen wir jedoch einer unausweichlich dilemmatischen Entscheidung gegenüber, die das bisherige Verständnis des Menschenwürdeprinzips des Grundgesetzes in Frage stellt. Dieser Konflikt kann, wenn überhaupt, nur durch rechtlich institutionalisierte Verfahren zur Prüfung jedes Einzelfalles gelöst werden. (shrink)

During the Covid‐19 pandemic, as resources dwindled, clinicians, health care institutions, and policymakers have expressed concern about potential legal liability for following crisis standards of care (CSC) plans. Although there is no robust empirical research to demonstrate that liability protections actually influence physician behavior, we argue that limited liability protections for health care professionals who follow established CSC plans may instead be justified by reliance on the principle of reciprocity. Expecting physicians to do something they know will harm their patients (...) causes moral distress and suffering that may leave lasting scars. Limited liability shields are both appropriate and proportionate to the risk physicians are being asked to take in such circumstances. Under certain narrow circumstances, it remains unclear that the standard of care is sufficiently flexible to protect physicians from liability. Given this uncertainty, the likelihood that physicians would be sued for such an act, and their desire for such immunity, this limited protection is morally legitimate. (shrink)

Ten years ago, Megan Shinal sought the care of neurosurgeon Steven Toms for the surgical treatment of a recurrent nonmalignant tumor in the pituitary region of her brain. In their twenty-minute meeting, Shinal did not make a final decision about which surgical approach she wished to pursue. Subsequently, she spoke with Tom's physician assistant once by phone and once in person, when she signed the consent form, which did not appear to designate which surgical approach she had chosen. During the (...) operation—a total resection—Toms perforated Shinal's carotid artery, resulting in hemorrhage, stroke, brain injury, and partial blindness. The jury found that Toms had fulfilled his informed-consent obligations prior to performing the resection; however, in June 2017, the Supreme Court of Pennsylvania overturned the decision, relying on the Pennsylvania Medical Care Availability and Reduction of Error Act. The court found that the language of the act is unambiguous in its requirement that “a physician's duty to provide information to a patient sufficient to obtain her informed consent is non-delegable.” Presumably, this rule of nondelegation applies beyond the surgical theater to other major treatment decisions. And it is unclear whether it applies to other professionals in a subordinate position to the treating physician, such as residents and fellows. (shrink)

Volume 20, Issue 7, July 2020, Page 153-155.

Genetic testing has led to the establishment of the concept of the “previvor”: someone who is not yet sick, but who has a genetic predisposition to disease. The previvor experience demonstrates how the practice of medicine and medical decision making is evolving to render current law and policy increasingly inapplicable to modern medical practice. The introduction of previvorship to the medical landscape raises special issues for the physician-patient relationship and the legal doctrine of informed consent. It challenges some of the (...) most basic assumptions underlying the doctrine, is representative of the doctrine’s declining utility, and is illustrative of the need to transition to a shared decision-making model. Thus, we should begin to envision a legal doctrine that supports a robust shared decision-making approach to address individual preferences and values, the increasing complexity of risk/benefit assessment, and inherent (and sometimes irreducible) uncertainty. Such an approach should emphasize a new, more expansive, and inclusive model of illness. (shrink)

Morain and colleagues (2019) advocate rethinking the rather dogmatic guidance from both regulatory authorities and professional associations cautioning physician-investigators against obtaining inf...

American history has been rife with human subjects research scandals, particularly those that involve “vulnerable” populations. State and federal laws and regulations often do not provide any special oversight mechanisms or protections to ensure the ethical and safe inclusion of cognitively impaired adults in research. At the New York State level, repeated efforts have been made to regulate research involving individuals who lack consent capacity. In January 2014, the New York State Task Force on Life and the Law released its (...) Report and Recommendations for Research with Human Subjects Who Lack Consent Capacity, which represents the most recent step in a decades-long process in the state to develop oversight mechanisms that are appropriately sensitive to the fine line between protecting a vulnerable population and impeding the advancement of research. These recommendations may serve as a model for research policy in other states and at the federal level, particularly in light of shifting societal concerns and changing political winds. (shrink)

Despite existing federal and state law and regulation, new human subjects research scandals involving “vulnerable” populations continue to surface. Although existing oversight mechanisms were enacted to ensure voluntary informed consent for participants and institutional review board oversight of HSR, these laws and regulations do not provide any special oversight mechanisms or protections to ensure the ethical and safe inclusion of cognitively impaired adults. The absence of rules to ensure consistently ethical conduct of research involving adults who lack consent capacity may (...) either lead to exploitation of this vulnerable population or the dearth of important research into the broad range of diseases that impair cognition. In other words, while some institutions and investigators are conducting research with this group without guidance, others are taking an extremely conservative approach and are excluding these individuals from research. Without safeguards that are adequate and robust but not overly burdensome, conducting research involving this population is ethically and legally challenging. (shrink)

Amy Gutmann is a political philosopher who brings a critical, feminist, and multicultural read to John Dewey’s concept of democratic education. I begin by turning to Gutmann’s Democratic Education to see how she amends and extends Dewey’s concept of democracy in relation to education. I then explore her further development of deliberative democracy as a political theory in Democracy and Deliberation. We learn about her basic principles for democratic education, nonrepression and nondiscrimination, developed in her earlier work and (...) the addition of a third principle, deliberation, in Democracy and Disagreement, as she continues to aim to find ways for basic democratic values of liberty, opportunity, and mutual respect to thrive and for acceptable terms for social cooperation to further develop in a world where people disagree in significant ways. We find that Gutmann relies on a separation between moral ideals and political ideals to maintain the case for the value of deliberative democracy as a political ideal. There are problems such a separation creates from a transactional perspective of democracy-always-in-the-making. We consider if Gutmann’s theory will help us improve conditions for democracy someday, or not. (shrink)

This paper offers a critique of the “democratic state of education” proposed by Amy Gutmann in her influential book Democratic Education. In the democratic state of education, educational authority is shared among the state, parents and educational professionals; and educational objectives are geared toward equipping future citizens to participate in what Gutmann calls “conscious social reproduction”—the collective shaping of the future of society through democratic deliberation. Although I agree with some of Gutmann’s broad recommendations for civic education, (...) I have misgivings about the centrality that she gives to conscious social reproduction in her theory of education. I argue that in focusing so intently on the facilitation of conscious social reproduction, Gutmann’s theory makes insufficient room for the basic interests of individual children, and in particular, their prospective interest in autonomy. Gutmann’s considered position on sex education policy—specifically, her willingness to allow local communities to deny their children access to sex education—exemplifies the shortcomings of her theory. Ultimately, her democratic state of education fails to acknowledge the fundamental moral importance of individual flourishing, and the contribution that education can and should make to it. (shrink)