A response to Brock and Skene

Wicclair responds briefly to articles by Dan W. Brock, "Patient decision-making competence and risk," and Loane Skene, "Risk-related standard inevitable in assessing competence," in this issue of Bioethics. Brock and Skene were responding to Wicclair's essay, "Decision-making capacity and risk," also in this issue of Bioethics. Wicclair had critiqued the arguments of Brock and Allen Buchanan, published elsewhere, concerning standards of competence for health care treatment decision making.     

Investigating genetic discrimination in Australia: opportunities and challenges in the early stages

Genetic discrimination, defined as the differential treatment of individuals or their relatives on the basis of actual or presumed genetic differences, is an emerging issue of interest in academic, clinical, social and legal contexts. While its potential significance has been discussed widely, verified empirical data are scarce. Genetic discrimination is a complex phenomenon to describe and investigate, as evidenced by the recent Australian Law Reform Commission inquiry in Australia. The authors research project, which commenced in 2002, aims to document the multiple perspectives and experiences regarding genetic discrimination in Australia and inform future policy development and law reform. Data are being collected from consumers, employers, insurers and the legal system. Attempted verification of alleged accounts of genetic discrimination will be a novel feature of the research. This paper overviews the early stages of the research, including conceptual challenges and their methodological implications.     

Mental health law: civil liberties and the principle of reciprocity.

At a conference organised by the Law Society, Mental Health Act Commission, and Institute of Psychiatry possible reform of mental health legislation in England and Wales was discussed. It was concluded that radical legal reform was required, and that the law should be designed specifically for provision of care in both hospital and the community. Reform should be based on principle rather than pragmatism, particularly the principle of reciprocity--patients'' civil liberties may not be removed for the purposes of treatment if resources for that treatment are inadequate. Protection of society from nuisance or even violence is insufficient reason for detention. Legal provision for compulsion of patients, whether in hospital or the community, must be matched by specific rights to treatment.     

Investigating genetic discrimination in Australia: opportunities and challenges in the early stages

Genetic discrimination, defined as the differential treatment of individuals or their relatives on the basis of actual or presumed genetic differences, is an emerging issue of interest in academic, clinical, social and legal contexts. While its potential significance has been discussed widely, verified empirical data are scarce. Genetic discrimination is a complex phenomenon to describe and investigate, as evidenced by the recent Australian Law Reform Commission inquiry in Australia. The authors research project, which commenced in 2002, aims to document the multiple perspectives and experiences regarding genetic discrimination in Australia and inform future policy development and law reform. Data are being collected from consumers, employers, insurers and the legal system. Attempted verification of alleged accounts of genetic discrimination will be a novel feature of the research. This paper overviews the early stages of the research, including conceptual challenges and their methodological implications.     

RECLAIMING THE PATIENT'S VOICE AND SPIRIT IN DYING: AN INSIGHT FROM ISRAEL

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.     

BOOK REVIEW

Ownership of Human Tissues and Cells, Office of Technology Assessment, Congress of the United States
Deputy Chairman New South Wales Law Reform Commision     

The legal position of psycho-geriatric patients in nursing homes and residential homes

Recently the Law on Formal Admission to Psychiatric Hospitals was evaluated for the second time. This law aims to protect the legal position of psychiatric patients, who have been involuntarily admitted. This patient group includes psycho-geriatric patients who are admitted to residential and nursing homes for which this is indicated. In this article the part of the evaluation concerning the internal legal position of psycho-geriatric patients is reported. This part of the study investigated both the knowledge of the law in practice and its correct application, as well as the suitability of the law for this domain of health care. The conclusion can be drawn that residential and nursing homes are aware of the laws purposes, but health care practitioners find it hard to follow certain aspects of the law's procedures, especially regarding the use of restraints. The main reason for this is that the Formal Admission Law was designed for a psychiatric setting, which cannot easily be translated to the position of psycho-geriatric patients. The suggestion is made that the Government will develop new legislation, which reflects special characteristics of psycho-geriatric care. Meanwhile health institutions have to take measures in order to improve the legal position of patients in this sector.     

Pest problems: The view of the New Zealand conservation authority

Abstract

The New Zealand Conservation Authority was established 3 years ago by the Conservation Law Reform Act 1990. Its functions include the provision of advice on conservation issues of national importance to Government and to the Department of Conservation (DoC). It has a statutory role in the approval of management plans for national parks and other important areas of the conservation estate. It advises the Minister and the Director-General of Conservation annually on priorities for the expenditure of money.     

Legal Status of the Northern Sea Route and Legislation of the Russian Federation: A Note

This article addresses the legal status of the Northern Sea Route (NSR) from a historical perspective and in accordance with the current Russian legislation and provides some answers to the questions of how the legal status of the NSR conforms with the norms of contemporary international law of the sea and, in particular, with the 1982 UN Convention on the Law of the Sea.     

Locked wards in Canadian mental hospitals: the return to custodialism

In 1975 a survey of the open- and locked-ward practice of 38 of the 44 Canadian public mental hospitals showed that more than one third of the wards are locked 24 hours a day. This survey is the only one known to have been conducted in the last 16 years and the first to have obtained data from all 10 provinces. Hospitals with fewer than 300 beds have a significantly smaller proportion of locked wards than those with more than 600 beds.The custodial, antitherapeutic environment was the most frequently cited disadvantage of the locked ward, and facilitation of the therapeutic milieu was the most commonly cited advantage of the open ward. The most commonly cited problem of the open ward was the inability to protect the community from the dangerous, violent patient. The most frequently cited factor required to open the wards was a higher nursing staff:patient ratio, but it is suggested that this is an erroneous opinion. What is required is the organization and involvement of the patients in meaningful activities throughout the day, hospitals with fewer beds, and better relations with the community to foster public tolerance.National organizations concerned with mental hospital practice have no data on the open- and locked-ward practice in this country. There are pressures, channelled through the political and judicial systems, to lock the wards, and the Law Reform Commission of Canada has recently recommended transferring mentally ill prisoners to mental hospitals.     

A Note on the Nicaragua v. Colombia Case

The 2012 Nicaragua v. Colombia Case is the second instance where the International Court of Justice has employed the standard method in maritime delimitation since the 2009 Black Sea Case. The “standard method” involves three stages with the construction of a provisional equidistance line as the core of the methodology. There is no legal basis under the UN Convention on the Law of the Sea or customary law for the a priori position given to an equidistance line. Moreover, questions can be raised about the Court's operation at the second stage, which should consist of an adjustment or shifting of the provisional line rather than replacing it. Finally, the use of the disproportionality test as the touchstone for equity of the delimitation line is doubtful.     

Marine scientific research and the new law of the sea

U.S. policy is to encourage freedom of marine scientific research (MSR). This article compares the legal regimes governing the conduct of MSR under the 1958 Geneva Conventions on the Law of the Sea and the 1982 UN Convention on the’ Law of the Sea, which is approaching universal acceptance, and distinguishes MSR from survey activities. It argues that, notwithstanding the erosion of the physical areas of the ocean in which there is freedom of MSR under the Law of the Sea Convention, it provides mechanisms for states’ parties to obtain compliance by coastal states with their duties to grant consent, in normal circumstances, for MSR projects in the exclusive economic zone (EEZ) or on the continental shelf, and to establish rules and procedures ensuring that such consent will not be delayed or denied unreasonably. It also suggests establishment of a national marine scientific research program analogous to the U.S. Freedom of Navigation Program.     

Tape-recorded Lectures with Slide Synchronization A Description of the Method

DNA: Blueprint of Life. 1969 (16 mm, colour, sound, 17 minutes). Film Library, John Wiley &; Sons Ltd., Baffins Lane, Chichester, Sussex.

About Abortion 16 mm, sound, colour, 22 minutes. Produced by the Northern Sound Services (Films) Ltd for the Abortion Law Reform Association.

Mikrops Colour Slides

Latest Catalogues     

A Note on the Application of Article 234 of the Law of the Sea Convention in Light of Climate Change: Views from Russia

This note explores the nature of Article 234 of the 1982 UN Convention on the Law of the Sea in light of decreasing Arctic ice cover. Despite various readings and possible interpretations of Article 234, the principal source of the rules of treaty interpretation is the 1969 Vienna Convention on the Law of Treaties. The note concludes, based on treaty interpretation, that there are no legal grounds for changing the Arctic regime based on Article 234 in light of the decreasing ice cover in the Arctic.     

DEADLY PLURALISM? WHY DEATH‐CONCEPT,DEATH‐DEFINITION,DEATH‐CRITERION AND DEATH‐TEST PLURALISM SHOULD BE ALLOWED,EVEN THOUGH IT CREATES SOME PROBLEMS

Death concept, death definition, death criterion and death test pluralism has been described by some as a problematic approach. Others have claimed it to be a promising way forward within modern pluralistic societies. This article describes the New Jersey Death Definition Law and the Japanese Transplantation Law. Both of these laws allow for more than one death concept within a single legal system. The article discusses a philosophical basis for these laws starting from John Rawls' understanding of comprehensive doctrines, reasonable pluralism and overlapping consensus. It argues for the view that a certain legal pluralism in areas of disputed metaphysical, philosophical and/or religious questions should be allowed, as long as the disputed questions concern the individual and the resulting policy, law or acts based on the policy/law, do not harm the lives of other individuals to an intolerable extent. However, while this death concept, death definition, death criterion and death test pluralism solves some problems, it creates others.     

Flugunfähigmachen von Vögeln – Für und Wider

The techniques and biological functions of avian flight are briefly presented. The reasons for rendering zoo birds flightless are explained taking into account the tasks and obligations of modern zoos, and the various deflighting procedures are described. The legal situation regarding deflighting as it currently exists in Germany and other countries is clarified. It is discussed in detail under which circumstances it would be justifiable to render a bird flightless, to what extent keeping the birds in aviaries would be an alternative and whether reversible or irreversible methods should be preferred. A legal opinion has been sought which came to the conclusion that even under the restrictive Animal Welfare Law of Germany interventions to render a bird flightless were admissible if based on veterinary indication on a case-by-case basis. Such indication may be justified by the anticipation that a bird may be injured or die from an accident in future if not deflighted. Contrary to the views of some legal experts commenting on the German Animal Welfare Law the authors consider feather clipping not to be an intervention prohibited under the law. In the interest of the good functioning of european and international breeding programmes the authors suggest that the German legislation should be modified with a view of containing a general derogation for rendering flightless at least certain species of zoo birds.     

Informed consent in clinical research at a general hospital in Mexico: opinions of the investigators

In Mexico informed consent is a legal requirement that ensures that patients who are invited to participate in clinical trials are provided with all the information needed to decide whether to participate, or not, in a research protocol. To improve our understanding of the problems physicians in developing countries encounter, when obtaining informed consent (IC), we examined their opinion on the importance of IC in clinical research, the quantity and quality of the information provided to the participant, and the conditions in which the IC is obtained. Investigators considered that IC was useful to the patients, providing information that helped the patient to make a decision about his/her participation. Nevertheless, they felt that for some aspects of the research, like drug development in general, the use of placebos, and the randomization process, many of the patients were not capable of fully understanding the information provided, referring to the complexity of the information and illiteracy as the main reasons. Many investigators were not acquainted with some of the guidelines established in the Mexican General Law of Health,(1) 36% of them admitting to not having completed their IC letters. Most investigators gave only minutes to the patient to make a decision and 20% of ICs were obtained while the patient was hospitalized. Except for one investigator, all of them considered that specific training in medical ethics would be useful for the daily clinical work.     

PSSAs and Transit Passage—Australia's Pilotage System in the Torres Strait Challenges the IMO and UNCLOS

On 22 July 2005, the International Maritime Organization (IMO) approved the extension of the Great Barrier Reef Particularly Sensitive Sea Area (PSSA) to the Torres Strait in Resolution MEPC.133(53). Australia amended its regulations and issued marine orders imposing a compulsory pilotage system in the Torres Strait. Australia's actions triggered protests from maritime states at the IMO and in bilateral diplomatic exchanges. This article examines the legal issues raised by Australia's establishment of a compulsory pilotage system in a strait used for international navigation, including the prospects for Australia being challenged under the compulsory dispute settlement provisions of the UN Convention on the Law of the Sea. It is recommended that the PSSA Guidelines of the IMO be amended to ensure that such legal issues do not arise in the future.     

《野生动物保护法》再修订: 背景、争点与建议

《野生动物保护法》的修订已纳入全国人大2020年年度立法计划。现行《野生动物保护法》虽然经过多次修改, 但仍存在野生动物保护范围较窄、监管体制不顺、执法标准不科学、法律制度不完善等问题, 不能适应新时代“健康中国”、“美丽中国”战略协同规制的新需求。全国人大常委会通过的《关于全面禁止非法野生动物交易、革除滥食野生动物陋习、切实保障人民群众生命健康的决定》, 为修订《野生动物保护法》带来了良好机遇。目前各方面对于修订《野生动物保护法》既有共识, 也有争议, 呈现出不同利益诉求与立法思维的差异性, 以及立法过程中利益选择、利益表达、利益协调的复杂性。为此, 建议《野生动物保护法》的修订在完善立法目的、合理界定保护范围、健全“黑白”名单制度和许可证制度、优化野生动物保护监管体制、完善激励机制和法律责任制度等方面认真加以研究, 为促进环境治理体系和治理能力现代化“立良法”。