1,721,026 research outputs found
Evaluating 'best interests' as a threshold for judicial intervention in medical decision-making on behalf of children
Full text link
Introduction
Full text linkThis collection was inspired by the decision of the Court of Appeal in Great Ormond Street Hospital v Gard [2017] (the ‘Charlie Gard case’). In Gard, and in the cases that followed, both the Court of Appeal (and later the Supreme Court in rejecting permission to appeal) affirmed the orthodox position that the threshold for judicial intervention in disputes about medical care of children is the welfare of the child, often referred to as the ‘best-interests’ approach. ‘Best interests’ is generally used to refer both to the threshold for intervention and as the test applied to determine what should be done once the court is involved. In this volume, we focus solely on the threshold question: when should the court be permitted to make decisions on behalf of very ill children when parents and the medical treating team cannot agree
Legal and cultural differences in medical decision-making on behalf of very young children
Full text linkThis collection brings together analyses of disputes between parents and doctors over the treatment of seriously ill young children from more than twenty-five jurisdictions across six continents. While it is impossible to do justice to all of the themes or patterns that emerge from the contributors in this book, in this chapter, we hope to draw out some of the key themes, and to contextualise these within the social and cultural background of the countries discussed. We begin by exploring the reasons for the lack of reported case law in many of the jurisdictions, which may be explained both by some countries’ values being less likely to give rise to conflict in the first place, and by the existence of alternative mechanisms for resolving such disputes which avoid an adversarial court process. We go onto consider how the role of parents in such decisions are conceptualised, and the differing limits placed of parental authority in the countries examined, with different thresholds to be met before the court can become involved and override a parent’s decision. Finally we examine differences in how the courts in different countries are applying common standards such as ‘best interests’, and the challenges they face in doing so
Nobody's Thing? Human Tissue in Science, Ethics and Law During the Late Twentieth Century
No full textNobody's Thing? Human Tissue in Science, Ethics and Law During the Late Twentieth Century
No full textThe cusp of capacity: empowering and protecting people in decisions about treatment and care
Full text linkThe lawâs cliff-edge approach to mental capacity denies those who lack capacity any right to determine what will happen to them. Consequently, the test for capacity (contained in section 3 of the Mental Capacity Act 2005) must accurately distinguish between those who can and cannot make autonomous decisions.
However, the test relies on too narrow a conception of autonomy, preventing it from capturing impairments in the content of the personâs beliefs or values, rather than their decision-making processes. Moreover, whether a decision is autonomous is rarely as clear-cut as the threshold approach presupposes, and there is substantial ambiguity on the cusp of capacity, exacerbated by the realities of assessing capacity in practice. Faced with this uncertainty, decision-makers have sought to manipulate the test through straining the âuse or weighâ criterion in section 3, and more readily rebutting the presumption of capacity where the person wishes to do something that will harm them. This thesis therefore advocates introducing a new authenticity limb to the test that asks whether the personâs values or beliefs are the product of an illness or disorder, as well as greater guidance to enhance the consistency with which the test is applied.
Even so, as no test can infallibly distinguish autonomous from non-autonomous decisions, the lawâs cliff-edge approach needs softening. To address concerns that the best interests provisions currently facilitate risk aversion and paternalism, a new framework is proposed to encourage decision-makers to prioritise the wishes of the individual, through a rebuttable presumption that their wishes be determinative of their best interests unless giving effect to them would expose the person to a serious risk of significant harm. If this is rebutted, the weight accorded to the personâs wishes ought to be proportionate to the strength of those wishes when determining what is in their best
interests.</p
Regulating human enhancement technology: an equality perspective
Full text linkThe aim of the thesis is two-fold. First, to shine a spotlight on the significant but under theorised equality harms of human enhancement technology (HET). Second, to provide a robust framework for regulating the most immediate of these harms: unfairness in competitive scenarios.
The thesis is divided into six chapters. Together, Chapter One and Two set up the base upon which the argument of the thesis builds. Chapter One explains HET and canvasses the dominant definitional approaches. It argues that none of these offer stable markers for regulation and proposes a ‘variable-degree spectrum’ definition of HET. Chapter Two engages with regulatory theory. It argues that new technology such as HET may precipitate sui generis regulatory intervention when it results in harms that cannot be addressed by existing generic laws.
Chapters Three, Four and Five bring the equality harms of HET into focus and attempt resolution through existing law. Chapter Three delineates the potential and current equality harms of HET and states unfair competition as the focus of the thesis. It notes that while existing laws can be applicable to certain harms on a case-to-case basis, they fail to capture the harm of unfair competition. Chapter Four explores equality law in international human rights law as a further source of generic law which can preclude sui generis regulatory intervention. It is found deficient in its ability to address the concern with unfair competitions. Chapter Five draws insights from the regulation of enhancements in sports. These insights affirm the link between effort, merit, and reward, the need for a concrete definition of enhancement, and the relevance of positionality of the enhancement.
Chapter Six, the final chapter, consolidates the insights and conclusions of the previous chapters. It presents the equality-informed model for regulating enhancement in competitive scenarios. It applies this model to three distinct hypotheticals in the education context, derives results, and then makes concrete regulatory suggestions tailored to the needs of the hypothetical
- …
