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38536 results in Cambridge Textbooks

Page 1571 of 1927

  • 4 - Consent and autonomy

  • Nils Hoppe, Universität Hannover, Germany, José Miola, University of Leicester
  • Book:
    Medical Law and Medical Ethics
    Published online:
    28 May 2018
    Print publication:
    03 April 2014, pp 75-108

  • Summary

    Introduction

    Before medical treatment may lawfully be provided to a competent patient, there must be a legally valid consent. In this chapter we consider issues surrounding the concept of consent, and then that of patients’ capacity to consent. Taken together, these two topics help to determine whether the patient can legally make his or her own choices about the treatments offered, and whether he or she has received sufficient information regarding the risks, benefits and alternatives inherent in any proposed treatment. Needless to say, the prevailing theme of this chapter is autonomy, which ought to be distinguished carefully from the concept of liberty (more on this later). We begin by considering the issue ofrisk disclosure (also referred to as the legally substantial part of ‘informed consent’), which involves the question of what information must be provided to the patient before the consent given to the proposed treatment may be valid. Obviously, a patient deprived of adequate information may make a decision that is different from the one that he or she would have made had he or she been apprised of all of the relevant facts. If the depth or range of the information is insufficient, while he or she may be at liberty to make his or her own decision, it will not be an autonomous one. The question of how the law defines a relevant fact is critical here. What we shall see here is the way in which the law has, in less than thirty years, performed a volte face in terms of how it sees the provision of information. It used to look at the issue from the perspective of asking what the doctor’s duty should be, whereas, increasingly, it does so from a position that asks what rights the patient has and seeks to protect them. What can therefore be identified within the story of the law’s development is a cultural shift that has seen the courts increasingly identify and protect the principle of autonomy as they see it. However, the liberty to express autonomy is contingent upon that person being legally competent to make it. This chapter therefore then continues by considering the question of what constitutes legal competence in adults. The position of minors and the arrangements for decision-making involving adults who lack capacity to consent is dealt with in Chapter 5.

  • 3 - Errors and fault

  • Nils Hoppe, Universität Hannover, Germany, José Miola, University of Leicester
  • Book:
    Medical Law and Medical Ethics
    Published online:
    28 May 2018
    Print publication:
    03 April 2014, pp 44-74

  • Summary

    Occasionally, even the best doctors make mistakes. Sometimes, the mistake will lead to an injury to the patient, while at other times the parties are lucky in that there is no adverse consequence following the error. There are also times where a patient may feel that the doctor has made amistake, such as when he or she does not recover from a procedure as fully as he or she would have expected or hoped, or has reacted badly to adrug. In all of these scenarios, we are not concerned with any bad faith or intention on the part of the doctor, but instead a potential display of a lack of skill in treating the patient. In this chapter, then, we examine how the law seeks to respond to a doctor who it deems to have fallen below thestandards expected of him or her.

    The first question, of course, is whether the doctor has indeed acted in a way that is unacceptable at all. Therefore, we shall begin this chapter by outlining the law relating to negligence. This discussion will not only take in the general elements of the law (duty, breach and causation), but also the role of guidelines and evidence-based medicine in determining and encouraging good practice. We shall also consider the issue of systemic fault and whether it would be right for the law to punish that. Finally, we shall examine the concept of no-fault compensation, which is generally seen as the most likely alternative to the use of negligence to compensate the victims of medical misadventure. In this chapter, we are therefore concerned with errors and fault, rather than mere negligence. However, since negligence constitutes the current method in English law for considering suboptimal treatment, the majority of our analysis will begin with and concentrate on that.

  • 5 - Incapable adults and children

  • Nils Hoppe, Universität Hannover, Germany, José Miola, University of Leicester
  • Book:
    Medical Law and Medical Ethics
    Published online:
    28 May 2018
    Print publication:
    03 April 2014, pp 109-143

  • Summary

    Introduction

    Minors and incapacitated adults share one specific legal characteristic: they are unable, at least in all circumstances, to make decisions on their own behalf. This has several legal consequences. The first is that we must try as much as possible to protect the person from harm. This means acting in their interests if they cannot make decisions for themselves. Secondly, we must be careful about the decisions that they do make in order to ensure that they make only those that they are capable of making. Once again, the reason for this is so that, as much as possible, we protect the welfare of such patients. Thirdly, if the patient cannot make decisions about his medical treatment on his own behalf, there must be some mechanism for determining who makes the relevant choices, and yet again a major consideration is concern for the welfare of the patient. Fourthly, and finally, there must be an acknowledgment that even if the person is permanently incompetent (minors and unconscious adults, for example, may become competent at a later date), they may be able to make some decisions on their own behalf. In other words, we must strive to let them retain as much autonomy as possible – and that means allowing as many decisions as possible to be made by incapable patients. Needless to say, this final consequence may be seen as a contrast to the others, as the patient’s autonomous decision may not necessarily correspond to what is in their best interests. Much of the law’s development in this area relates to this tension between autonomy and welfare, and this is the focus of the legal analysis in this chapter. We shall begin by considering the legal situation for adults who have failed the test for capacity outlined in Chapter 4, before continuing by examining that for minors.

  • 1 - Introduction

  • Nils Hoppe, Universität Hannover, Germany, José Miola, University of Leicester
  • Book:
    Medical Law and Medical Ethics
    Published online:
    28 May 2018
    Print publication:
    03 April 2014, pp 1-15

  • Summary

    The approach that we take in this book is one that considers medical law and ethics. The book seeks to make clear distinctions when speaking of ‘law’, ‘morals’ and ‘ethics’, but what do we mean when we use these terms? It seems self-evident that these words do not mean the same things and it is vital to be certain of their meaning before embarking on working with medico-legal and medical ethics literature (and with this book for that matter). We will outline our use of these terms in the context of this book in this chapter in a way which, hopefully, will give the reader an appreciation of the delineation and overlap of these concepts. We do, of course, realise that these terms, and their exact relationship, are the subject of much debate. At the end of this chapter – as with all chapters – we have provided references for further reading that will illuminate the scope of that debate and allow the reader to delve deeper if he or she wishes to do so. For the purposes of this textbook, however, it is prudent to identify and define how we use these terms so that our discussion of their relationship can make sense to the reader.

  • 2 - Confidentiality and access to information

  • Nils Hoppe, Universität Hannover, Germany, José Miola, University of Leicester
  • Book:
    Medical Law and Medical Ethics
    Published online:
    28 May 2018
    Print publication:
    03 April 2014, pp 16-43

  • Summary

    Introduction – is medical information confidential?

    When one thinks of different types of information, there is a clear intuition to feel thatmedical information touches upon a personal sense of privacy in a way that makes it inherently private and confidential. As we will see from the approach of the courts which we discuss in this chapter, there is no question that medical information is deemed confidential, and this is true both in legal and ethical terms. Historically, in medical ethics theconfidential nature of medical information (and the duties on doctors that this imposes) has been asserted from the Hippocratic Oath to the World Medical Association’s Declaration of Geneva to the General Medical Council’s guidelines in the United Kingdom. Indeed, the GMC considered the doctor’s duty of confidence so important that at one point in the 1990s it was one of only four issues specifically covered in its ‘Duties of a Doctor’ guidance. In legal terms, the confidential status of medical information has been repeatedly asserted by the courts, to the extent that it was held to be ‘well recognised as confidential’ by the House of Lords in the case of Campbell v. Mirror Group Newspapers. Obviously, this means that there is a prima facie duty imposed on the doctor not to disclose information inappropriately.

  • 10 - Research

  • Nils Hoppe, Universität Hannover, Germany, José Miola, University of Leicester
  • Book:
    Medical Law and Medical Ethics
    Published online:
    28 May 2018
    Print publication:
    03 April 2014, pp 237-257

  • Summary

    Introduction

    Patients within a health system, such as the NHS, might interact with health professionals in a number of different ways. The obvious one is that they are patients in receipt of medical treatment. Another regularly occurring context is that of medical research. In this setting, the person participating in the research might either be a patient (and the research is usually into the condition from which the patient suffers) or she might be a healthy volunteer. In any case, where the aim of the exercise is not primarily to improve an individual’s health condition, different rules apply. A borderline case is that of experimental treatment being provided to patients, where the treatment is not proven, but the doctor may feel that it could be of benefit. We outline the different types of treatment and experiments here.

    What is research? Research versus experimental treatment

    It is more difficult than it initially appears to get a clear definition of what is meant by research. Indeed, the concept of research must be distinguished from experimental and innovative treatments, and indeed from ‘treatment’ in general terms. A simple definition is provided by the General Medical Council, who state that research refers to:

    an attempt to derive generalisable new knowledge. Research aims to find out what is best practice by addressing clearly defined questions with systematic and rigorous methods. It includes studies that aim to generate hypotheses as well as those that aim to test them.

    The guidance makes it clear that this might involve and cover both research with human participants as well as records-based research, or research using donated human tissue. Moreover, the definition of research also covers clinical trials. This, according to the GMC, encompasses a wide range of investigations and, for example:

    they can test medicines or vaccines, treatments, surgical procedures, devices, or health prevention or care. A clinical trial of investigational medicinal products is a particular type of trial that is governed by legislation.

  • Preface

  • Nils Hoppe, Universität Hannover, Germany, José Miola, University of Leicester
  • Book:
    Medical Law and Medical Ethics
    Published online:
    28 May 2018
    Print publication:
    03 April 2014, pp ix-x

  • Summary

    Preface

    This book is not aimed at one group in particular. Despite the fact that it considers the law, it is not designed to cater solely for lawyers any more than the fact that it considers the ethics should limit it to philosophers. Rather, we have attempted to make both the legal and ethical discussions as accessible to all disciplines as possible. That said, the ethical discussion will relate to the legal rules, and so provide something of an ethical commentary surrounding the law. This approach results in several consequences. First, we do not claim to consider each and every issue in detail within each legal topic. Rather, we concentrate on those with an ethical component and those that we feel are the most important. Moreover, we have tried to avoid legal minutiae, which we feel would have the effect of making the book less accessible to non-lawyers in particular. We do, however, provide suggested further reading for both law and ethics at the end of each chapter to direct readers towards more detailed consideration of the topics.

    We have also tried not to use more cases than we need to – we want this book to be about issues rather than cases, and there are already several other textbooks available that provide a comprehensive account of case law, and we do not wish to merely repeat what they have done, particularly since they have done it very well. Nevertheless, we do of course cover the major cases. Again, the further reading suggested at the end of each chapter will direct readers who wish to look at more case law to sources where this is provided for.

  • 8 - Abortion, neonaticide and infanticide

  • Nils Hoppe, Universität Hannover, Germany, José Miola, University of Leicester
  • Book:
    Medical Law and Medical Ethics
    Published online:
    28 May 2018
    Print publication:
    03 April 2014, pp 185-209

  • Summary

    Introduction

    There are few topics that elicit quite so much debate as abortion. Ethical positions frequently depend on the individual’s views concerning when life begins, and for those who believe that life begins at conception, abortion is, quite simply, murder. For others, the most important aspect is a woman’s right to autonomy over her own body – for them, to legislate against abortion is to turn the woman into little more than a foetal container. Essentially, we have to accept that there is no hope of ever achieving consensus regarding abortion, since too many views depend on what Jonathan Glover terms ‘ultimate beliefs’ – a set of beliefs that cannot be defended through evidence, and instead simply reflect what a person’s instinct tells them about an issue. Thus, if we ask someone ‘why’ enough times when they answer a question, eventually they will reach the bottom of the barrel of their thinking, and they will respond: ‘just because’. This is the fundamental moral belief. We all have them, and they are irresolvable. This is why no agreement is possible on the question of, for example, when life does actually begin. The law via the Abortion Act 1967, as we shall see, reflects this and is designed as a compromise. However, equally predictable is the fact that it is a compromise that rather than making everyone happy, instead satisfies nobody.

  • 9 - Organ transplantation and the use of human tissue

  • Nils Hoppe, Universität Hannover, Germany, José Miola, University of Leicester
  • Book:
    Medical Law and Medical Ethics
    Published online:
    28 May 2018
    Print publication:
    03 April 2014, pp 210-236

  • Summary

    Introduction

    Although the utilisation of human organs and biological material of human origin has a long and colourful history, therapeutic interventions such as transplantations to replace a diseased organ have only become medical routine in the past sixty years. Modern uses of human biological material are varied and it is necessary to distinguish these uses if we are to understand the legal and ethical aspects properly. In this chapter, we will look at the use of whole human organs for the purposes of transplanting them to another human (organ transplantation); the use of human tissues for the purposes of transplanting them to another human (tissue transplantation); and the use of human biological material for non-therapeutic purposes, in particular tissue research.

    The use of human tissues and organs for transplantation and other purposes has undeniably caused problems for the law, for several reasons. First, there has tended to be a shortage of organs available for transplantation (also see Chapter 6 on ‘Resource allocation and prioritisation’). This has meant that there are people who would benefit from transplants who have not been able to receive them due to the simple fact that there has not been a suitable organ. However, studies have consistently shown that there are far more people who would say that they would be willing to donate organs than there are people who actually donate them, which results in a frustrating situation where the organs and the desire to donate them are present in theory, but not in practice. Thus, the law has to balance the need for further organs (and encouraging people to donate them) with an equal need to protect the choices of those who do not wish to donate. On a related note, the law has to ensure that people who decide to donate are actually doing so because they want to, rather than because they feel compelled to. This coercion may take different forms, from a simple response to financial inducement (if someone needs the money she may consent for that reason rather than because she wants to) to believing that they have to consent given the help that they have already been offered by medical professionals (this would particularly be the case with patients in the NHS who are asked by their doctors whether they wish to donate organs).

  • 12 - Concluding remarks

  • Nils Hoppe, Universität Hannover, Germany, José Miola, University of Leicester
  • Book:
    Medical Law and Medical Ethics
    Published online:
    28 May 2018
    Print publication:
    03 April 2014, pp 291-294

  • Summary

    For those who have dipped in to one or a few chapters of this book, we hope that we have managed to pique your interest to find out more, and indeed that you have gained some insight into the complexities of the legal and ethical rules that emerge in the areas of medical law covered by this book. For those who have read all of the chapters: we hope that this is the case for you too, but would like to add some final words regarding some of the themes in this book.

    The first of the two strands that run through the book is the question of a balance of rights and interests. Medical law and ethics involves, inevitably, a relationship between doctor and patient. Sometimes their interests will conflict. Thus, in Chapter 3 regarding errors and fault, the law and ethics have to balance the right of the patient for compensation for harm with a duty not to unfairly punish doctors. Equally, we saw in Chapter 8 how the law can make certain exceptions in the case of abortion so that medical staff do not have to participate in procedures that are contrary to their moral and ethical views – although, quite rightly, this is subject to the health of the pregnant woman not being at risk. Other examples can be found in virtually all of the chapters, which is inevitable given that there will always be a relationship between the two parties where the behaviour of one will have consequences for the other. The law cannot help but try to be fair to both parties.

  • 6 - Resource allocation and prioritisation

  • Nils Hoppe, Universität Hannover, Germany, José Miola, University of Leicester
  • Book:
    Medical Law and Medical Ethics
    Published online:
    28 May 2018
    Print publication:
    03 April 2014, pp 144-160

  • Summary

    Introduction

    Whatever the system of health care used, whether a comprehensive service free at the point of delivery such as in the United Kingdom, or an insurance-based system such as in the United States, resources are finite. Therefore, hard choices will need to be made regarding whether individual patients can be provided with everything that they need – and that is before we get to the question of providing them with everything that they might want. Indeed, we should acknowledge from the beginning that all systems practise resource allocation and do not simply fund everything. In the United States, many insurance policies are not totally comprehensive, so not all conditions are covered. Equally, there may be limitations, relating to cost for example, that mean that even for a condition that is covered, unlimited treatment is not available. However, as we shall see, such rationing also occurs in the United Kingdom. The NHS does not have a bottomless pit of cash, and it is simply not possible to fund absolutely everything – the service is comprehensive rather than limitless.

    In this chapter we consider, first, how the law treats and reviews decisions made by medical professionals and those managing them in the NHS, before then turning to the ethical aspects of rationing. In the legal section, we begin by examining what the NHS Constitution itself has to say about the ‘right’ of patients to treatment, so that we can ascertain how the NHS sees its role. We continue by then looking at the role of the National Institute for Health and Clinical Excellence (NICE), and the way in which the court has treated challenges against its decisions, before assessing the approaches taken by the courts to cases challenging rationing decisions: a human rights approach, breach of statutory duty and judicial review.

  • 5 - Early natural-science Psychology

  • Richard T. G. Walsh, Wilfrid Laurier University, Ontario, Thomas Teo, York University, Toronto, Angelina Baydala, University of Regina, Saskatchewan, Canada
  • Book:
    A Critical History and Philosophy of Psychology
    Published online:
    28 May 2018
    Print publication:
    20 March 2014, pp 202-250

  • Summary

    Introduction

    Although early modern natural philosophers were interested in the relationship between biological and psychological processes, psychology remained a branch of philosophy or theology. Then nineteenth-century physiologists demonstrated experimentally that neuromuscular functions, perceptual processes, and mental operations were interdependent, a consistent finding that created space for a natural-science psychology. Some German scholars, then British, French, US, and Russian scientists began to adopt physiologists’ methodology to analyze conscious experience of sensory-motor functions and answer such philosophical questions as:

  • What is a mind? Of what does it consist? How is it related to the brain?

  • What roles do biology and evolution play in psychological processes?

  • How do psychological capacities develop?

  • How do humans gain knowledge of the empirical world? How do physical phenomena become sensations? How do emotions and thoughts originate?

  • What is an action? How is action related to emotion, thought, and will?

  • How do humans remember their experiences?

  • What is a self? How is it related to other selves?

  • What is the individual’s relation to society?

    • In answering these questions many new psychologists used extant language concerning brain–behaviour relations and evolutionary adaptation. They adopted biological notions, expounded by Alexander Bain and Herbert Spencer, about cerebral localization, sensory-motor activity, and the association of ideas (R. M. Young, 1970). In addition, Gustav Fechner’s psychophysics, “the institutionalization of laboratory instruction” (Ash, 2003, p. 253), and British innovations in statistical analyses of population data became the components of natural-science Psychology’s methodology.

    But early psychologists encountered a problem: they could only provide functional explanations according to physiological sensations and movements, not across all levels of brain and behavioural relations. Thus, while scholars struggled with the insufficiency of purely physiological, contemporary explanations for psychological phenomena, the discipline of Psychology took shape.

  • 10 - Human-science psychologies: hermeneutic to transpersonal

  • Richard T. G. Walsh, Wilfrid Laurier University, Ontario, Thomas Teo, York University, Toronto, Angelina Baydala, University of Regina, Saskatchewan, Canada
  • Book:
    A Critical History and Philosophy of Psychology
    Published online:
    28 May 2018
    Print publication:
    20 March 2014, pp 454-501

  • Summary

    Introduction

    In this, the second chapter on human-science Psychology, we trace its origins to the interpretive discipline known as hermeneutics. Then we describe the multiple facets of human-science Psychology as expressed in phenomenological, existentialist, humanistic, and transpersonal psychologies. Although these alternatives to natural-science Psychology initially emerged in continental Europe, they have proved influential elsewhere, including in Anglo-American nations.

    The aims of this chapter are to describe:

  • The pivotal problem of interpretation in Psychology and how the discipline of hermeneutics is a viable solution.

  • Wilhelm Dilthey’s foundational distinction between the natural sciences and the human sciences and his approach to studying human mental life.

  • The contributions to Psychology of Eduard Spranger and Karl Jaspers, who extended, modified, and applied Dilthey’s concepts and methods.

  • The concerns of phenomenological and existential psychologies and one particular application, Viktor Frankl’s logotherapy.

  • The development of “American” adaptations of these European psychologies in the diverse forms expressed by Rollo May, George Kelly, and the humanistic psychologists: Abraham Maslow and Carl Rogers.

  • Transpersonal psychologies and the historically contested place of spirituality and religion in Psychology, including the implications of psychologists’ incorporating spirituality and religion for the discipline and for individuals’ physical and mental health.

  • Two themes that summarize the issues addressed in this chapter: the centrality of understanding and interpretation, and the disputed border between body and mind, soul, and spirit.

  • 9 - Human-science psychologies: psychoanalysis

  • Richard T. G. Walsh, Wilfrid Laurier University, Ontario, Thomas Teo, York University, Toronto, Angelina Baydala, University of Regina, Saskatchewan, Canada
  • Book:
    A Critical History and Philosophy of Psychology
    Published online:
    28 May 2018
    Print publication:
    20 March 2014, pp 405-453

  • Summary

    Introduction

    Alongside developments in natural-science Psychology there emerged a rather different trend in psychological thought and practice known as psychoanalysis. Nineteenth-century philosophy, medicine, and physiology formed the context in which Sigmund Freud developed a theory of unconscious psychological dynamics. Many previous thinkers promoted the idea of unconscious psychic processes, but Freud creatively integrated these ideas into a complex theoretical system. Although he intended it as a natural science, with various practitioners understanding and interpreting it, psychoanalysis evolved into a human science of subjectivity. Many natural-science psychologists have been dismissive of much of psychoanalysis, but some claim that its diverse theories continue to have an enduring influence on psychological thought.

    In this chapter, we begin by considering pre-psychoanalytic constructions of unconscious phenomena, emphasizing how Freud was not the first to theorize unconscious processes. Then we review the social, cultural, and political context of Freud’s life to situate the emergence of his ideas. Next you will encounter different threads of psychoanalytic thought and a range of key thinkers. We consider the analytical psychology of Carl Jung, followed by analysts who stressed the sociopolitical, the ego, object relations, postmodern thinking, and gender. Lastly, we examine how psychoanalysis has been received and uniquely developed in different cultural contexts and discuss the possibilities for psychoanalysis in scientific and professional Psychology.

Page 1571 of 1927