Although genetic selection has a slew of issues involved with the
process, what dictates hyper-parenting? If being a hyper-parent is the
same for genetic selection as it is for having an organized schedule for
one's child, at what point do you tier different levels of hyper-
parenting? If everyone seems to be a hyper-parent in their own right,
wouldn't the argument of "gene selector hyper-parents" become moot?
Although genetic selection has a slew of issues involved with the
process, what dictates hyper-parenting? If being a hyper-parent is the
same for genetic selection as it is for having an organized schedule for
one's child, at what point do you tier different levels of hyper-
parenting? If everyone seems to be a hyper-parent in their own right,
wouldn't the argument of "gene selector hyper-parents" become moot?
It seemed as if the paper never defined consent. Consent defined,
giving permission for an action that affects the self under full
disclosure of the action.
Conflict of Interest:
Taking a biomedical ethics course at the College of Charleston.
Wales, (one of the nations of UK), has its' own devolved Health
service. It has been decided to use an Opt out as well as Opt In policy
during an introductory stage.. It is not perfect but there has been an
attempt to introduce the policy ethically by posting a booklet to every
household in Wales. There are links whereby people can obtain further
information both via the internet or over the phone. Inevitably some...
Wales, (one of the nations of UK), has its' own devolved Health
service. It has been decided to use an Opt out as well as Opt In policy
during an introductory stage.. It is not perfect but there has been an
attempt to introduce the policy ethically by posting a booklet to every
household in Wales. There are links whereby people can obtain further
information both via the internet or over the phone. Inevitably some will
fall through the net, especially as a failure to declare an Opt Out
decision will eventually lead to an assumption of Opt In and recorded on
the organ/blood donation register.. A safeguard is included in that it
has been made easy to also register a Change of Mind -for those who are
aware of it. There have also been publicity campaigns via the media
especially local TV and these need to be repeated..
One criticism is that although it is promoted as absolutely the
individual's choice, the information is openly biased towards Opting In.
for example the letter of acknowledgement of an Opt Out reminds people
that they are more likely to need a donor than to donate their organs.
That part is highlighted. Followed by what to do if the person changes
their mind. The letter also instructs people to let their friends and
relatives know of their decision. This part highlighted. Many will have
nobody or not wish to tell anybody. It rather undermines trust that the
individual's decision will definitely be honoured regardless of others'
opinions.
Dr. Miller cites the "professional integrity of physicians" and the
uncertainty of whether additional interventions will restore a patient's
desire to live.
Does Dr. Miller's professional integrity include honesty,
truthfulness, and sincerity when speaking to severely treatment-resistant
patients? Particularly with respect to the efficacy of treatments that
will provide rapid response and prolonged remission? D...
Dr. Miller cites the "professional integrity of physicians" and the
uncertainty of whether additional interventions will restore a patient's
desire to live.
Does Dr. Miller's professional integrity include honesty,
truthfulness, and sincerity when speaking to severely treatment-resistant
patients? Particularly with respect to the efficacy of treatments that
will provide rapid response and prolonged remission? Does that integrity
extend to honestly communicating with these patients regarding scientific
data on the likelihood, severity, and duration of relapse or recurrence?
Or is Dr. Miller referring to the integrity that embodies a
physician's personal ethics, morality and righteousness? Given Dr.
Miller's emphasis of the uncertainty about whether additional
interventions with the patient can improve quality of life, it appears the
physician's beliefs should trump the ability of informed patients to
decide.
As Drs. Schuklenk and van de Vathorst stated, "if the pace of
developments leading to therapeutic success in major depressive disorder
is anything to go by, many
people suffering from TRD would have reason to be sceptical about the odds
of such a treatment regimen coming about within a timeframe that they
would consider acceptable."
Patients suffering from treatment-resistant major depression have
likely undergone extensive long-term professional psychiatric care.
"Typically they would have tried a fairly significant number of
antidepressants, psychotherapy, probably
electroconvulsive therapy, and they would have experienced the failure of
these varied therapeutic approaches."
Dr. Miller places considerable weight on the "uncertainty of whether
additional interventions will restore a patient's desire to live." As Dr.
Schuklenk points out, this argument unjustly ignores "the high burden that
is paid by patients who happen to wait unsuccessfully for a successful
treatment that may not come about at all or that may come about too late."
Drs. Schuklenk and van de Vathorst provided sound recommendations in
their article. Dr. Miller appears to personally disagree.
Bentham's hedonic, or felicific, calculus doesn't work, in practice,
either, so the criticism of a calculus being difficult or not absolute
applies equally to utilitarianism.
The hedonic calculus allows conclusions with no benefit, or negative
benefit, or positive pain for some. If the net calculation is positive for
all, then the negative consequences for one or more individuals is
subsumed by the greater good...
Bentham's hedonic, or felicific, calculus doesn't work, in practice,
either, so the criticism of a calculus being difficult or not absolute
applies equally to utilitarianism.
The hedonic calculus allows conclusions with no benefit, or negative
benefit, or positive pain for some. If the net calculation is positive for
all, then the negative consequences for one or more individuals is
subsumed by the greater good and, essentially, ignored. Worse, you can, in
theory, have a negative consequence for one individual, such as torture,
that seems acceptable because of the overall positive result.
With transactional audit, every individual has an absolute
requirement for some quantum of dignity.
If the dignity of any one person is to be compromised, to maximise
dignity, that is explicit in the calculation.
A decision to act against the dignity of one or more, is then the
least bad option - rather than, with utilitarianism, an the optimal
decision.
I think this is an important step forwards, ethically. As the article
puts it: 'The starting point is that everyone's dignity counts. Everyone
is a stakeholder in every transaction.'. Even after the decision, the
importance of individual dignity remains.
Wouldn't next step be, similar to law, to try to establish
precedents? To invite the registration of specific decisions that used
transactional analysis, so that they can be referred to, eventually, as a
body of knowledge, a guide for future decisions?
Abstract worked examples, or even concrete examples worked by one
person, are less likely to be complete, satisfactory, and widely
considerate of all stakeholders, and their dignity, than a recorded
history of decisions made in similar circumstances, and building on
precedent.
Having a collection of such decisions as a benchmark would also make
matters much easier, and, one hopes, fairer, when the time available
decide is too short to carry out a full audit.
The only specific problem I see, with the maximisation of dignity as
an objective, is much the same as for utilitarianism. If 100 stakeholders
are distant enough for their dignity to be impacted by 1/100th, then they
have the equivalent stake in dignity as the patient. Fair enough, but, if
you consider 20 million people, they only need a very tiny stake indeed to
counter the interests of the patient.
This seems wrong. Some cut-off distance, for stakeholders not in
close proximity to the patient, seems necessary to mitigate the potential
tyranny of the majority.
In their
recent article Farrell and Brazier [1]
assert that the recent decision in Montgomery v Lanarkshire
Health Board [2]
should not cause doctors any anxiety or concern. However the legal perspective
on the case is perhaps not the same as the clinician's perspective. From the
clinician's perspective there are reasonable concerns.
Firstly, we
should note that the damages in Montgomery amounted to approximately
5.25 million pounds [3]
and were recovered in negligence as a result of the breach of the duty to
adequately inform. An action for a breach of the GMC rules of conduct would not
have resulted in an award of this size. Montgomery may not have changed
the expected rules of conduct for clinicians, but in terms of enlarging the
extent of liability for breach, the case has taken the velvet glove off the
mailed fist.
Secondly,
the model underlying medical decision-making is now to firmly place the
liability for ordinary consequences flowing from medical decision-making in the
hands of the patient:
"treats [patients], so far as possible, as
adults who are capable of understanding that medical treatment is uncertain of
success and may involve risks, accepting responsibility for the taking of risks
affecting their own lives, and living with the consequences of their
choices."[4]
The
obligation on the doctor is, through the provision of information, to place the
patient in the position to make the necessary choices. In order to achieve this
outcome it is asserted that the Court has made a combination move in Montgomery:
(a) there is a shift in the yardstick used to
judge the standard of disclosure from the Bolam
standard towards a modified objective patient standard; and
(b) there a shift of view point from the
perspective of the clinician towards the perspective of the patient.
The first
point has been well telegraphed by the Courts as Farrell and Brazier point out.
However, the second point is not so clearly already embedded in clinical
practice. Briefly, let us put aside the reasonable patient disclosure limb of
the standard and focus only upon the particular patient disclosure limb of the
test.[5] The particular patient disclosure limb
disclosure requires disclosure where:
(i)
the doctor is aware that the particular patient would be likely to attach
significance to the risk; or
(ii) the doctor should
reasonably be aware that the particular patient would be likely to attach
significance to the risk.
The
question has changed from, what can and should the clinician deliver to what
does this patient need to know? [6]
"The assessment is therefore
fact-sensitive, and sensitive also to the characteristics of the patient."[7]
Conforming
to such a particularist legal rule is hard in
practice because it requires the clinician to have some insight into the thoughts
of each patient. Thoughts that the patient need not express until the court
hearing for breach of the duty of care, as the facts of Montgomery
demonstrate.
Given that
the mind of the patient is not necessarily in full purview to the clinician the
question is what does the clinician have to do in practice in the particular
case in order to prove valid consent? Simply answering the patient's questions
is no longer enough. A signed consent form is no longer enough. What would be
enough?
Developing
and then embedding a process approach to consent with adequate documentation to
avoid liability is a new demand on already overstretched resources. The Court
recognized that more clinical time will be needed in order to secure adequate
consent.[8]
But this will have to be costed and delivered.
The
decision in Montgomery leaves process failures to be challenged in
public law rather than in tort.[9]
Given the differences between judicial review actions and negligence actions,
the effect is likely to be to push liability for process failures downstream
onto clinicians.
Thirdly,
there is the question of whether a patient can be told too much? After the
fact, the patient can complain that there was something could have been known
and that were not told that adversely affected their judgement sufficiently to
justify an action in negligence. But, by analogy, can the patient also complain
about facts that they were told but should not have been told? Would such a
positive affront to the autonomy of the patient be actionable?
In
conclusion, there are things in the judgement that reasonably give clinicians
pause for thought.
[1] Farrell AM, Brazier M. Not so new
directions in the law of consent? Examining Montgomery v Lanarkshire Health
Board. J Med Ethics 2015 (online first) doi:10.1136/medethics-2015-102861
[2]Montgomery v Lanarkshire Health
Board[2015] UKSC 11
[4]Montgomery v Lanarkshire Health
Board[2015] UKSC 11 at para 81.
[5]Montgomery v Lanarkshire Health Board[2015]
UKSC 11 at para 87.
[6] Heywood R. R.I.P. Sidaway:
patient-oriented disclosure-a standard worth waiting for? Montgomery v
Lanarkshire Health Board[2015] UKSC 11. Med Law Rev 2015;23(3):455-66.
[7]Montgomery v Lanarkshire Health
Board[2015] UKSC 11 at para 89.
[8]Montgomery v Lanarkshire Health Board[2015]
UKSC 11 at para 93.
[9]Montgomery v Lanarkshire Health Board[2015]
UKSC 11 at para 75.
Despite a damning 2014 Australian Human Rights Commission report into
the plight of children in immigration detention, the disturbing findings
of reported in the 2015 Moss Inquiry into allegations relating to
conditions and circumstances at the Australian regional migrant processing
centre in Nauru, and compelling evidence of the harm suffered by these
children, Australia continues to hold children in im...
Despite a damning 2014 Australian Human Rights Commission report into
the plight of children in immigration detention, the disturbing findings
of reported in the 2015 Moss Inquiry into allegations relating to
conditions and circumstances at the Australian regional migrant processing
centre in Nauru, and compelling evidence of the harm suffered by these
children, Australia continues to hold children in immigrant detention.
Procedural justice has been retarded or withheld, and for a country rich
in resources and previously generous in providing opportunities for
migrants, distributive justice has been tragically lacking. Recently
enacted border protection legislation constrains government contracted
staff from disclosing the circumstances in immigration detention centres.
The Australian Federal Government has repeatedly, and arrogantly, flouted
its obligations under International Human Rights Legislation and
Conventions with bipartisan political support. International action is
warranted with Australia's bid for a seat on the United Nations Human
Rights Council providing a potential lever for catalysing change. It would
be unconscionable for Australia to take a seat on the Council while
refugee children remain in detention.
In 2014 the Australian Human Rights Commission published a damning
report, "The forgotten children: national inquiry into children in
immigration detention", which found that mandatory immigration detention
was harmful to children and violated the Convention on the Rights of the
Child.1 Despite this unequivocal moral and legal condemnation, 174
children remain in immigration detention facilities as of 30 November
2014.2
David Isaacs' eloquent discussion of the conundrum facing health care
professionals working in Australia's immigration detention centres focuses
on the competing moral duties to provide care, thus effectively condoning
torture, and/or to speak out, with likely legal reprisal.3 However,
holding children, often for extended periods, in detention presents an
untenable ethical situation. Perpetuating this practice, despite
confirmation of abuse, and expert evidence of long term - avoidable -
medical and psychology harm, provides incontrovertible evidence that the
Australian government has been derelict in balancing the principles of
beneficence (doing good) and non-maleficence (avoiding or minimizing harm)
when dealing with these children.4-8
Procedural justice has been retarded or withheld, with inordinately
long periods of detention and no indication of the period of confinement.
Australia, a country that is rich in resources and previously demonstrated
laudable generosity in providing opportunities for migrants, could rightly
be accused of withholding distributive justice from these children.
Human rights legislation can be a useful foil against political
expediency. It can buffer prejudicial actions against minorities where
these measures are popular with the powerful majority.9 Tragically, as
demonstrated by the arrogant response of Australia's former prime
minister, quoted by Isaacs, compliance by a country's government with its
humanitarian obligations requires a willingness to acknowledge fault where
this exists and to take decisive corrective action.
The freedom of those Australians most acutely confronted with the
realities of life in detention facilities to voice their concern without
fear of retribution may have been legally muzzled in Australia. Bipartisan
flouting of international legal obligations has not provoked the ire of
the broader populace beyond some enlightened non-governmental
organisations and professional medical and ethics bodies. Thus,
international action is warranted. Australia's bid for one of the two
seats on the United Nations Human Rights Council that will become vacant
for the period 2018 to 2020 should be used as a catalyst to accelerate
reforms to Australia's offshore processing arrangements, particular those
relating to imprisoning children. It would be unconscionable for Australia
to take a seat on the UN Human Rights Council while refugee children
remain in detention. International pressure appears morally justified in
the cause of justice.
References
1. The Forgotten Children: National Inquiry into Children in
Immigration Detention. Australian Human Rights Commission, 2014.
https://www.humanrights.gov.au/sites/default/files/document/publication/forgotten_children_2014.pdf
(accessed 29 Dec 2015).
2. Australian Government Department of Immigration and Border
Protection. Immigration detention community statistics summary. 30
November 2015. https://www.border.gov.au/about/reports-
publications/research-statistics/statistics/live-in-australia/immigration-
detention (accessed 29 Dec 2015).
3. Isaacs D. Are healthcare professionals working in Australia's
immigration detention centres condoning torture? J Med Ethics Published
Online First: 23 December 2015.
4. Murphy L. Beneficence, law and liberty; the case of required
rescue. Georgetown Law J 2001; 3: 605-65.
5. Dudley M, Steel Z, Mares S, et al. Children and young people in
immigration detention. Curr Opin Psychiatry 2012; 25: 285-92.
6. Green JP, Eagar K. The health of people in Australian immigration
detention centres. Med J Aust 2010; 192: 65-70
7. Moss P. Review into recent allegations relating to conditions and
circumstances at the Regional Processing Centre in Nauru, 6 February 2015.
https://www.border.gov.au/ReportsandPublications/Documents/reviews-and-
inquiries/review-conditions-circumstances-nauru.pdf (accessed 29 Dec
2015).
8. Paxton G, Tosif S, Graham H, et al.
Perspective: The forgotten children: National inquiry into children in
immigration detention. J Paediatr Child Hlth 2015; 51: 365-8.
9. McNeill PM. Public health ethics: asylum seekers and the case for
political action. Bioethics 2003: 17: 487-502.
Although genetic selection has a slew of issues involved with the process, what dictates hyper-parenting? If being a hyper-parent is the same for genetic selection as it is for having an organized schedule for one's child, at what point do you tier different levels of hyper- parenting? If everyone seems to be a hyper-parent in their own right, wouldn't the argument of "gene selector hyper-parents" become moot?
C...
It seemed as if the paper never defined consent. Consent defined, giving permission for an action that affects the self under full disclosure of the action.
Conflict of Interest:
Taking a biomedical ethics course at the College of Charleston.
Wales, (one of the nations of UK), has its' own devolved Health service. It has been decided to use an Opt out as well as Opt In policy during an introductory stage.. It is not perfect but there has been an attempt to introduce the policy ethically by posting a booklet to every household in Wales. There are links whereby people can obtain further information both via the internet or over the phone. Inevitably some...
Dr. Miller cites the "professional integrity of physicians" and the uncertainty of whether additional interventions will restore a patient's desire to live.
Does Dr. Miller's professional integrity include honesty, truthfulness, and sincerity when speaking to severely treatment-resistant patients? Particularly with respect to the efficacy of treatments that will provide rapid response and prolonged remission? D...
Bentham's hedonic, or felicific, calculus doesn't work, in practice, either, so the criticism of a calculus being difficult or not absolute applies equally to utilitarianism.
The hedonic calculus allows conclusions with no benefit, or negative benefit, or positive pain for some. If the net calculation is positive for all, then the negative consequences for one or more individuals is subsumed by the greater good...
In their recent article Farrell and Brazier [1] assert that the recent decision in Montgomery v Lanarkshire Health Board ...
Abstract
Despite a damning 2014 Australian Human Rights Commission report into the plight of children in immigration detention, the disturbing findings of reported in the 2015 Moss Inquiry into allegations relating to conditions and circumstances at the Australian regional migrant processing centre in Nauru, and compelling evidence of the harm suffered by these children, Australia continues to hold children in im...
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