In this paper I get clearer on the considerations that ought to inform the evaluation and development of medico-legal competency criteria—where this is taken to be a question regarding the abilities that ought to be needed for a patient to be found competent in medico-legal contexts. In the “Decisional Competency in Medico-Legal Contexts” section I explore how the question regarding the abilities that ought to be needed for decisional competence is to be (...) interpreted. I begin by considering an interpretation that takes the question to be asking about the abilities needed to satisfy an idealized view of competent decision-making, according to which decisional competency is a matter of possessing those abilities or attributes that are needed to engage in good or effective or, perhaps, substantially autonomous or rational decision-making. The view has some plausibility—it accords with the way decisional competency is understood in a number of everyday contexts—but fails as an interpretation of the question regarding the abilities that should be needed for decisional competence in medico-legal contexts. Nevertheless, consideration of why it is mistaken suggests a more accurate interpretation and points the way in which the question regarding the evaluation of medico-legal competency criteria is to be answered. Building on other scholarly work in the area, I outline in the “Primary and Secondary Requirements” section several requirements that decisional competence criteria ought to satisfy. Then, in the “Applying the Framework” section, I say something about the extent to which medico-legal competency criteria, as well as some models of decisional competency proposed in the academic literature, fulfil those requirements. (shrink)

The "decapitated of Fourni". A medical-legal and palaeopathological reexamination The two decapitated human skeletons discovered in 1960 in a bothros connected to the clearing of the latrines of the Maison de Fourni at Delos were published in 1973 (Études déliennes [BCH Suppl. I], p. 173-181) and have since led to divergent interpretations. They are here subjected to a new anthropolical study and, for the first time, to a palaeopathological examination, which leads to unexpected conclusions. Firstly, both victimes would have (...) been feminine. Secondly, the date of their beheading as provided by C-14 analysis is much higher than that proposed based on the historical context. The execution was preceded by a period of shackling and restraint. Finally, the bodies were thrown into a cesspool still in use. This episode cannot be connected to a precise event or social context. Nevertheless, this killing recalls more the ritual killing of a sect than a capital execution. (shrink)

Daniel Sperling discusses the legal status of posthumous interests and their possible defeat by actions performed following the death of a person. The author first explores the following questions: Do the dead have interests and/or rights, the defeat of which may constitute harm? What does posthumous harm consist of and when does it occur, if at all? This is followed by a more detailed analysis of three categories of posthumous interests arising in the medico-legal context: the proprietary (...) interest in the body of the deceased, the testamentary interest in determining the disposal of one's body after death and the interest in post-mortem medical confidentiality. Sperling concludes that if we acknowledge the interest in one's symbolic existence and legally protect it, not only do some interests survive a person's death but we should also enjoy a peremptory legal power to shape in advance our symbolic existence after death. (shrink)

U.K. regulation of sexual identity within a marriage context has traditionally been linked to biological sex. In response to the European Court of Human Rights decisions in Goodwin and I.,2 and in order to address the question of whether a transsexual person can be treated as a “real” member of their adoptive sex, the U.K. has recently passed the Gender Recognition Act 2004. While the Act appears to signal a move away from biology and towards a conception of sexual identity (...) based on gender rather than sex, questions of sexual identity remain rooted in medico-legal assessments of the individual transsexual body/mind. In contrast, because transsexual people in some parts of Canada have been able to marry in their post-operative sex since 1990, contemporary debates on the sexual identity of transsexual people in British Columbia and Ontario do not focus on the validity of marriage, and more frequently centre upon the provision of goods and services, in human rights contexts where sex is said to matter. Currently in Canada this is prompting questions of what it means to be a woman in society, how the law should interpret sex and gender, and how, if at all, the parameters of sexual identity should be established in law. This article seeks to compare recent U.K. legal conceptualisations of transsexuality with Canadian law in this area. As human rights discourse begins to grow in the U.K., the question remains as to whether or not gender will become an adequate substitute for sex. (shrink)

Guidelines advise that x-rays do not contribute to the clinical management of simple nasal fractures. However, in cases of simple nasal fracture secondary to assault, a facial x-ray may provide additional legal evidence should the victim wish to press charges, though there is no published guidance. We examine the ethical and medico-legal issues surrounding this controversial area.

This paper describes a half-day class for 200 first year medical students. It is designed like a conference and is intended to raise students’ awareness of legal issues that arise in everyday practice. It uses the Problem Based Learning approach of event-focus, student-guided learning and student teachers. There are three parts.

Australian law affirms a binary construction of fertility/infertility. This model is based upon the medical categorization of infertility as a disease. Law supports medicine in prioritizing technology, such as in vitro fertilization, as treatment for infertility. This prioritization of a medico-legal model of infertility in turn marginalizes alternative means of family creation such as adoption, fostering, traditional surrogacy, and childlessness. This paper argues that this binary model masks the impact of medicalization upon reproductive choice and limits opportunity for (...) infertile individuals to create families. While medical technology should be available to enhance reproductive opportunity, infertile individuals will benefit from regulatory change which disentangles the medico-legal construct of infertility as a disease from the desire to create a family. This paper suggests that the medico-legal model of infertility should be reframed to support all opportunities for family creation equally, including non-medical opportunities such as adoption, fostering, and childlessness. (shrink)

In the latter half of the 20th century, Western medicine moved death from the home to the hospital. As a result, the process of dying seems to have lost its spiritual dimension, and become a matter of prolonging material life by means of medical technology. The novel quandaries that arose led in turn to medico-legal regulation. This paper describes the recent regulation of dying in Israel under its Dying Patient Law, 2005. The Law recognizes advance directives in principle, (...) but limits their effect and form through complex medico-legal artifices. It reflects a culture that places high value on both scientific medicine and the sanctity of life as such, and illustrates a medical culture that pitches battle against death. At the same time, the Law constructs the will of the individual in a medico-legal language that is alien to the lay person. The paper suggests an alternative approach to advance care planning that is patient-centred and addresses the psycho-social needs of the individual in terms of her relational autonomy. From this perspective, advance care planning becomes an opportunity to extract the patient from the medical context and allow her to speak about her approaching death with close ones in her own terms of reference. To this end, there is a need for facilitation of an intimate encounter where patients can speak about their concerns with their loved ones. The paper also presents a methodological approach of attentive listening, which can be applied across diverse cultures and circumstances. (shrink)

The case of Alta Fixsler, where a judge ruled that withdrawing life sustaining care was in her best interest rather than transferring her to Israel, as her parents wanted, is the latest in a series of controversial paediatric best interest decisions. Using this case, as well as some other recent cases, I argue that the UK exhibits a high degree of medico-legal paternalism in best interest decisions, even though paternalism seems to be ubiquitously negatively perceived in medical ethics. (...) Firstly, I explain what I mean by medico-legal paternalism and defend my claim that this phenomenon is present in the UK. I then argue that at least philosophically (rather than legally) such a situation is impossible to justify in a secular state and that how we treat paediatric best interest decisions is very different from other areas of medical law. Lastly, I discuss proposals that aim to rectify this situation. (shrink)

Background In the coronavirus disease 2019 era, doctors have tried to decrease hospital visits and admissions. To this end, telemedicine was implemented in a non-systematic manner according. The objective of this study was to assess the current knowledge and attitudes of physicians in Alexandria, Egypt, and Punjab, India, toward telemedicine and its ethical and medico-legal issues. Method A cross-sectional study was implemented using an anonymous self-administered questionnaire carried out over two months (July and August 2020). A four-point Likert (...) scale was used to collect data about background knowledge, training in telemedicine and ethical and medico-legal issues in telemedicine practice. Results The questionnaire was completed by 175 Egyptian and 51 Indian physicians from different specialties. A significantly higher percentage of Indian physicians practiced telemedicine than Egyptian physicians during the coronavirus disease 2019 era. Although most physicians had no specific training or licensing to practice telemedicine, most of them practiced telemedicine through their social media accounts. Ethical violations involving waiving patient consent were detected. Significant ethical violations to doctors, for example, blackmail, defamation, hate speech, accusations in a court and violations of privacy, were observed. Indian physicians (39.2%) and Egyptian physicians (24%) thought the penalties should be lower in telemedicine than in traditional practice. Finally, most participants would like to continue using telemedicine after the coronavirus disease 2019 era but with improvements. Conclusions Coronavirus disease 2019 changed the acceptance of telemedicine by physicians. Many ethical and legal issues need to be addressed and clarified using formal training before implementation and standardization of telemedicine services. (shrink)

Las denuncias por responsabilidad médica en Ecuador se incrementaron en la última década a raíz de la penalización de la mala práctica profesional establecida en el Código Orgánico Integral Penal; la investigación es compleja y el peritaje médico legal se convierte en una pieza fundamental en el conflicto. Aquí analizamos 10 informes periciales de casos de mala práctica médica en Ecuador, se analiza la legislación ecuatoriana y revisión de la literatura referente al tema. Se identificó la falta de protocolos (...) o guías de procedimientos, los informes no cuentan con estructura y es el resultado de la discrecionalidad del perito designado. Se propone un protocolo de actuación pericial que facilitará la actividad del perito y mayor objetividad en la investigación. (shrink)

This paper discusses a dialectic whereby the law not only influenced medical thinking in late nineteenth-century Germany, but also underwent medicalization of its own initiative. At the end of the 1880s, social legislation was crucial in initiating the German discourse on traumatic nervous disorders. By employing doctors as medical experts in court, the law also created a new experiential realm for doctors, altering their behavior toward patients and shifting their focus from therapy to investigation. However, in the wake of their (...) experiences in court, doctors developed a dual etiology of traumatic symptoms, which included the law itself as a pathogenic element with the power to aggravate symptoms. Two medical views of law can be distinguished: some doctors claimed that it was the desire to receive the pensions offered under social legislation that induced workers to perpetuate and exaggerate their symptoms; others argued that since pension claims embroiled claimants in intimidating legal proceedings, the pathogenic effect of social legislation stemmed from fear rather than greed. (shrink)

The phenomenon of the New Genetics raises complex social problems, particularly those of privacy. This book offers ethical and legal perspectives on the questions of a right to know and not to know genetic information from the standpoint of individuals, their relatives, employers, insurers and the state. Graeme Laurie provides a unique definition of privacy, including a concept of property rights in the person, and argues for stronger legal protection of privacy in the shadow of developments in human (...) genetics. He challenges the role and the limits of established principles in medical law and ethics, including respect for patient autonomy and confidentiality. This book will interest lawyers, philosophers and doctors concerned both with genetic information and issues of privacy; it will also interest genetic counsellors, researchers, and policy makers worldwide for its practical stance on dilemmas in modern genetic medicine. (shrink)

We define a formal semantics of conditionals based on _normatively ideal worlds_. Such worlds are described informally by Armgardt (Gabbay D, Magnani L, Park W, Pietarinen A-V (eds) Natural arguments: a tribute to john woods, College Publications, London, pp 699–708, 2018) to address well-known problems of the counterfactual approach to causation. Drawing on Armgardt’s proposal, we use iterated conditionals in order to analyse causal relations in scenarios of multi-agent interaction. This results in a refined counterfactual approach to causal responsibility in (...) legal contexts, which solves overdetermination problems in an intuitively accessible manner. (shrink)

Social responsibility on the part of business has various meanings, to some of which English law is more favourable than others. But the law could be changed. The author is a Solicitor and Lecturer in Law in the University of Bristol. His Corporate Power and Responsibility: Issues in the Theory of Company Law has recently been published by Oxford University Press.

Social responsibility on the part of business has various meanings, to some of which English law is more favourable than others. But the law could be changed. The author is a Solicitor and Lecturer in Law in the University of Bristol. His Corporate Power and Responsibility: Issues in the Theory of Company Law has recently been published by Oxford University Press.

Public opinion surveys and polls have a long history as tools for the reportage of public sentiment. Born in the “straw polls” of nineteenth century politics, their use expanded in the last century to include a range of commercial and social subjects. In recent decades, these have included issues of medico-legal uncertainty including, in a partial list, abortion, fetal tissue research, and the propriety of medical termination. Because public opinion surveys are assumed to be “scientific,” and thus unbiased, (...) there has been little discussion of either their suitability in areas of complex, medico-legal uncertainty or the ethics of their use in these areas. This paper reviews their general history and then their use in the debate over medical termination, often called “medical aid in dying.” In this review, two problems are highlighted. First, there is the ambiguous nature of polls and the manner of their construction. Second, there is the manner in which they are deployed as simple and definitive statements in areas of complex medico-legal debate. The result calls for caution in their use by ethicists and a clear duty by both academics and journalists to understand the limits of the medium in areas of medico-legal debate and discussion. (shrink)

This study investigated the circumstances and problems that departments of forensic medicine encounter with bereaved families regarding samples obtained from medico-legal autopsies. A questionnaire was posted to all 76 departments of forensic medicine performing medico-legal autopsies in Japan, and responses were received from 48 . Of the respondents, 12.8% had approached and communicated with bereaved families about collecting samples from the deceased person during an autopsy and the storage of the samples. In addition, 23.4% of these (...) had informed families that samples might be used in research. Eighteen departments had received enquiries and requests from families about the samples, with most requests concerning their return. The response to such requests varied according to the department. Few departments interacted with the bereaved families regarding the procedure for obtaining autopsy samples, and their methods for handling family concerns differed depending on the person within the department authorised to contact the family. Moreover, the procedures for engaging in such communication have long been unclear, and no legal or ethical consensus or agreement with the general public has been established. It is important for researchers to further discuss the correct way for forensic medicine departments to communicate with bereaved families. (shrink)

Medical councils increasingly require graduates to understand law and to practise medicine mindful of the legal rules. In the UK a revised curriculum for medical law and ethics has been published. However, coverage of law in medical education remains variable and doubts exist about how far students acquire legal knowledge and skills in its implementation. This survey of students in two UK medical schools measured their law learning and their confidence in using this knowledge. Concept maps and a (...) self-audit questionnaire were used to capture students' understanding and perceptions of this knowledge domain and self-assessments of their legal knowledge and skills. A large sample was achieved across first, second and final year students. Students agree that a sound understanding of law is essential to being a good doctor. Their perceptions of law are generally positive but the interface between the legal rules and codes of medical ethics creates difficulty. In some areas students offer relatively confident self-assessments of their legal knowledge and skills for practising law. However, levels of confidence in other areas of their law learning raise doubts about the degree to which they can advocate for and protect their patients. Conclusions are drawn about the effectiveness of students' law learning and recommendations made for further research. (shrink)

Improving how health care providers respond to medical injury requires an understanding of patients’ experiences. Although many injured patients strongly desire to be heard, research rarely involves them. Institutional review boards worry about harming participants by asking them to revisit traumatic events, and hospital staff worry about provoking lawsuits. Institutions’ reluctance to approve this type of research has slowed progress toward responses to injuries that are better able to meet patients’ needs. In 2015–2016, we were able to surmount these challenges (...) and interview 92 injured patients and families in the USA and New Zealand. This article explores whether the ethical and medico‐legal concerns are, in fact, well‐founded. Consistent with research about trauma‐research‐related distress, our participants’ accounts indicate that the pervasive fears about retraumatization are unfounded. Our experience also suggests that because being heard is an important (but often unmet) need for injured patients, talking provides psychological benefits and may decrease rather than increase the impetus to sue. Our article makes recommendations to institutional review boards and researchers. The benefits to responsibly conducted research with injured patients outweigh the risks to participants and institutions. (shrink)

Addressing the slippery slope argument (SSA) in legal contexts from the perspective of pragma-dialectics, this paper elaborates the conditions under which an SSA-scheme instance is used reasonably (rather than fallaciously). We review SSA-instances in past legal decisions and analyze the basic legal SSA-scheme. By illustrating the institutional preconditions influencing the reasoning by which an SSA moves forward, we identify three sub-schemes (causal SSA, analogical SSA, and Sorites SSA). For each sub-scheme we propose critical questions, as well (...) as four rules that clarify when the SSA scheme is used reasonably. The institutional preconditions make the analogical SSA expectable in common law contexts; the Sorites SSA is expectable in civil law contexts; whereas the causal SSA is common to both contexts. This result should inform future work on the identification of typical argumentative patterns for the SSA in legal contexts. (shrink)

The rules governing recovery for negligently inflicted psychiatric injury are among the most criticized of all of tort law. However, one area which, to date, has escaped with a minimum of judicial or academic scrutiny concerns the very threshold requirement for these actions: proof of a ‘recognized psychiatric illness’. This article critiques that longstanding requirement of English law from two perspectives. First, it is argued that the international classifications of psychiatric disorders (ICD-10 and DSM-IV) are being misapplied and misconstrued in (...) the English medico-legal context and that the role (and limitations) of these classifications are worthy of far greater judicial examination and critical scrutiny than has typically been the case to date. Secondly, it is contended that the insistence upon a recognized psychiatric illness, as a threshold requirement, is giving rise to inconsistencies and distortions in the law and that the requirement is neither legally nor medically supportable in the modern era. Instead, it is argued that the stage has been reached whereby something lesser than a recognized psychiatric illness should be sufficient to trigger a compensable injury in law. The article concludes by suggesting various legal avenues by which to feasibly and robustly ‘ring-fence’ the number of potential claims in negligence, should the reform-oriented approach of this article be adopted. (shrink)

Thus, Meyers provides a valuable account, not only of current medical attitudes, but also of relevant case and statute law as it stands at present.

This paper answers the question how pragmatic argumentation which occurs in a legal context, can be analyzed and evaluated adequately. First, the author surveys various ideas taken from argumentation theory and legal theory on the analysis and evaluation of pragmatic argumentation. Then, on the basis of these ideas, she develops a pragma-dialectical instrument for analyzing and evaluating pragmatic argumentation in a legal context. Finally she demonstrates how this instrument can be used by giving an exemplary analysis and (...) evaluation of pragmatic argumentation in a decision of the Dutch Supreme Court. (shrink)

ArgumentIn the United States, scientific knowledge is brought before the courts by way of testimony – the testimony of scientific experts. We argue that this expertise is best understoodfirstas related to the quality of the underlying scienceand thenin terms of who delivers it. Bloodstain pattern analysis (BPA), a contemporary forensic science, serves as the vaulting point for our exploration of objectivity as a metric for the quality of a science in judicial contexts. We argue that BPA fails to meet (...) the minimal standard set by Helen Longino’s social-procedural account of objectivity (1990, 2002). In light of some pressing issues for social-procedural accounts, we offer an infrastructural account of objectivity. This account offers what amounts to a friendly amendment to Longino’s account and adds to the ways in which we might analyze social-procedural objectivity. Finally, we address an issue that is pressing in the legal context: given that scientific knowledge is delivered by individuals, not communities, at least in U.S. courts, we (may) need a way to evaluate individual scientific and epistemic agents. We suggest a means for making this evaluation that is derived from our infrastructural account of objectivity. (shrink)

In this contribution the prototypical argumentative patterns are discussed in which pragmatic argumentation is used in the context of legal justification in hard cases. First, the function and implementation of pragmatic argumentation in prototypical argumentative patterns in legal justification are addressed. The dialectical function of the different parts of the complex argumentation are explained by characterizing them as argumentative moves that are put forward in reaction to certain forms of critique. Then, on the basis of an exemplary case, (...) the famous Holy Trinity case, the way in which the U.S. Supreme Court uses pragmatic argumentation in this case is discussed by showing how the court instantiates general prototypical argumentative patterns in light of the institutional preconditions of the justification in the context of the specific case. (shrink)

Review of Graeme Laurie, Genetic Privacy.

In this article the author develops a framework for a pragma-dialectical reconstruction of teleological argumentation in a legal context. Ideas taken from legal theory are integrated in a pragma-dialectical model for analyzing and evaluating argumentation, thus providing a more systematic and elaborate framework for assessing the quality of teleological arguments in a legal context. Teleological argumentation in a legal context is approached as a specific form of pragmatic argumentation. The legal criteria that are relevant for (...) the evaluation of teleological argumentation are discussed and translated in terms of critical questions that are relevant for the evaluation of the various forms of teleological argumentation. (shrink)

In criminal trials, evidence often involves a degree of uncertainty and decision-making includes moving from the initial presumption of innocence to inference about guilt based on that evidence. The jurors’ ability to combine evidence and make accurate intuitive probabilistic judgments underpins this process. Previous research has shown that errors in probabilistic reasoning can be explained by a misalignment of the evidence presented with the intuitive causal models that people construct. This has been explored in abstract and context-free situations. However, less (...) is known about how people interpret evidence in context-rich situations such as legal cases. The present study examined participants’ intuitive probabilistic reasoning in legal contexts and assessed how people’s causal models underlie the process of belief updating in the light of new evidence. The study assessed whether participants update beliefs in line with Bayesian norms and if errors in belief updating can be explained by the causal structures underpinning the evidence integration process. The study was based on a recent case in England where a couple was accused of intentionally harming their baby but was eventually exonerated because the child’s symptoms were found to be caused by a rare blood disorder. Participants were presented with a range of evidence, one piece at a time, including physical evidence and reports from experts. Participants made probability judgments about the abuse and disorder as causes of the child’s symptoms. Subjective probability judgments were compared against Bayesian norms. The causal models constructed by participants were also elicited. Results showed that overall participants revised their beliefs appropriately in the right direction based on evidence. However, this revision was done without exact Bayesian computation and errors were observed in estimating the weight of evidence. Errors in probabilistic judgments were partly accounted for, by differences in the causal models representing the evidence. Our findings suggest that understanding causal models that guide people’s judgments may help shed light on errors made in evidence integration and potentially identify ways to address accuracy in judgment. (shrink)

A Note on the Linguistic Determinacy in the Legal Context This paper discusses linguistic vagueness in the context of a semantically restricted domain of legal language. It comments on selected aspects of vagueness found in contemporary English normative legal texts and on terminological problems related to vagueness and indeterminacy both in the legal domain and language in general. The discussion is illustrated with selected corpus examples of vagueness in English legal language and attempts to show (...) problems of the relation between vagueness and ambiguity in the context of legal institutionalised systems.The discussion also evokes theoretical issues which pertain to the relation between legal texts and their contexts, the problem of how linguistic forms acquire their contextual meaning and how linguistic expressions are disambiguated. These issues are further related to the post-Gricean theory of relevance, its inferential model of communication, and the interplay between the linguistic code and inferential processes in communication. (shrink)

Methodology: Literature Review and medico-legal commentary. Results: Fatal one-punch assaults have been reported extensively in the media. This article provides a commentary on recent policy developments and legislative amendments in Australia regarding so called ‘one-punch’ assaults. Comparisons are made with the situation in other jurisdictions including the UK, US, and Europe. The clinical forensic medical aspect of fist strikes to the head and face is examined in the context of the recent media attention and public interest these cases (...) have attracted. The increased recognition of the risk of harm and death inherent in these types of assaultive behavior is reflected in the policy and legislative changes that have taken place in some jurisdictions. Conclusion: One punch strikes may result in a range of injuries that can include permanent neurological impairment and death. Recent media and community concern regarding these cases and the need for stronger deterrence has resulted in a change in public policy and consequent legislative amendments. (shrink)

The Swedish medico-legal concept of “science and proven experience” is both legally important and ambiguous. The conceptual uncertainty associated with it can hamper effective assessment of medical evidence in legal proceedings and encourage medical professionals to distrust legal regulation. We examine normative criteria a functioning medico-legal notion should presumably meet, e.g. clarity, acceptability and consistency with existing laws. We also survey healthcare professionals to see how they understand science and proven experience and thus determine (...) the extent to which their understanding meets the normative criteria. The survey suggests that medical professionals feel more certain about “science and proven experience” in the medical context than they do in a legal context. They still have substantial trust in the legal use of the notion, but they do not believe that legal professionals should be allowed to determine the meaning of “science and proven experience” in the legal context. With these results in mind, we argue that the best way to meet the normative criteria and resolve conceptual uncertainty is to specify sub-questions that clarify the notion. We recommend an analytical-deliberative approach that will close the gap between the medical and legal professions’ perceptions of how law and medicine relate. (shrink)

Abstract: Socrates was both a loyal citizen (by his own lights) and a critic of the democratic community's way of doing things. This led to a crisis in 339 B.C. In order to understand Socrates' and the Athenian community's actions (as reported by Plato and Xenophon) it is necessary to understand the historical and legal contexts, the democratic state's commitment to the notion that citizens are resonsible for the effects of their actions, and Socrates' reasons for preferring to (...) live in Athens rather than in states that might (by his lights) have had substantively better legal systems. (shrink)