Law Archives - Page 18 of 43 - Protection of Conscience Project Library

(Book Review) Conflicts of Conscience in Health Care: An Institutional Compromise

Sean Murphy

Holly Fernandez Lynch. Conflicts of Conscience in Health Care: An Institutional Compromise. Boston: The MIT Press, 2008. 368 pp. ISBN: 9780262123051

Extract
Conflicts of Conscience in Health Care was published in 2008 as the 24th volume in the Basic Bioethics series from the Massachusetts Institute of Technology. It is an American book dealing with the American political and legal controversies over freedom of conscience in health care. However, the discussion of the American experience by Holly Fernandez Lynch is relevant elsewhere, since the United States has the most extensive and varied network of protection of conscience legislation in the world.

While acknowledging that freedom of conscience is of concern to all health care workers and institutions, Fernandez Lynch focuses exclusively on physicians. This carefully and deliberately restricted focus is one of the strengths of the book.

After a preface and introduction, discussion and argument occupy about 260 pages, supplemented by 53 pages of end notes, many of which offer expanded comment on the text. A good 12 page index has been included, as well as four pages of cited statutes and cases. The earliest source found in a list of 300 references is from 1951; the rest date from 1972 to 2007. . .

. . . . As the subtitle of the book indicates, she is seeking a compromise that will provide “maximal liberty for all parties.” She believes that freedom of conscience for physicians and the provision of legal medical services are both important social goals, and that they are not incompatible. Thus, she rejects “all-or-nothing” strategies that seek “total victory.” Ultimately, quoting the Protection of Conscience Project, she affirms that all legitimate concerns can be met by “dialogue, prudent planning, and the exercise of tolerance, imagination and political will.”

Murphy S. Book Review: Conflicts of Conscience in Health Care: An Institutional Compromise. Protection of Conscience Project; 2009 Dec 17.

Law and Bioethics: A Rights-Based Relationship and Its Troubling Implications

Daniel Sperling

Abstract
This chapter explores the relationship between law and bioethics and calls for a careful evaluation of the law’s contributions to bioethics. It argues that while the law contributed extensively to the development of bioethics, it introduced a language and a way of thinking that are not necessarily appropriate to handle and resolve bioethical issues, and which, in a significant portion of cases, was irrelevant and had little impact on decision-making and behavioural patterns of patients.

Sperling D. Law and Bioethics: A Rights-Based Relationship and Its Troubling Implications. In: Freeman M, editor. Law and Bioethics: Current Legal Issues. Oxford: Oxford University Press2008 Oct. p. 52-78.

Toxic Tinkering – Lethal Injection Execution and the Constitution

George J Annas

New England Journal of Medicine, NEJM — New England Journal of Medicine

Extract
Physicians should not lend their medical expertise to the state to make executions more palatable to the public, even by advising on drug protocols, doses, and routes of administration. Even physicians who support the death penalty should stay out of its execution, because the problem that the state seeks to solve by using physicians is one of the state’s own making by its refusal to abolish capital punishment and its insistence on execution by lethal injection.

Annas GJ. Toxic Tinkering – Lethal Injection Execution and the Constitution. N Engl J Med. 2008;359(14):1512-1518.

The Conscience Clause in American Pharmacy: An Historical Overview

Robert A Buerki

Extract
Conscience is a tricky business. Some interpret its personal beacon as the guide to universal truth. But the assumption that one’s own conscience is the conscience of the world is fraught with dangers. As C. S. Lewis wrote, “Those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.” As nations become more ethnically and religiously diverse, and science and medicine develop new and more complex health interventions, new forms of conscientious objections are likely to emerge. Conscientious objection is not simply a matter for individual pharmacists; it is a matter that must engage the entire profession of pharmacy and society as a whole. Professional associations, boards of pharmacy, and state legislatures must work together to prevent patients from bearing the burdens of excusing pharmacists from delivering the full measure of pharmaceutical care.

Buerki RA. The Conscience Clause in American Pharmacy: An Historical Overview. Pharmacy in History. 2008;50(3):107-118.

Medically Assisted Death: Nancy B. v. Hotel-Dieu de Quebec

Bernard M Dickens

Abstract
In Nancy B. v. Hotel-Dieu de Quebec, the Quebec Superior Court held that a patient was legally entitled to discontinue and decline medical treatment when she found it unacceptable. The author discusses how this case is consistent with several other, decisions, yet distinguishable from certain Canadian decisions which contributed to its outcome. Through an analysis of Criminal Code provisions against homicide and on the duty to preserve life, the doctrine of informed consent, and related jurisprudence, the author argues that the Nancy B. decision narrows the gap between allowing a patient to suffer natural death and medically assisting death. The author also raises issues associated with the notion of medical futility. He concludes that “the Nancy B. case moves the discourse in medical ethics and law towards the feminist “carebased” paradigm and suggests that the carefully- circumscribed judicial response was an appropriate legal answer to the question of how best to care for Nancy B..

Dickens BM. Medically Assisted Death: Nancy B. v. Hotel-Dieu de Quebec. McGill Law Journal. 1993;38(1053-1070.

Anesthetizing the public conscience: lethal injection and animal euthanasia

(The Lethal Injection Debate: Law and Science)

Ty Alper

Extract
People are never executed using the anesthetic-only procedure that veterinarians and shelter workers use on animals. And animals are never euthanized by the three-drug formula prison officials use on human beings. As detailed in this Article, the veterinary and animal welfare communities widely condemn the use of neuromuscular blocking agents such as pancuronium. Particularly given the popular assumption that execution of humans by lethal injection is no different than “putting an animal to sleep,” the condemnation of the use of curariform drugs in the euthanasia context should give courts pause when assessing the risks of the three-drug formula under the Eighth Amendment. . . The Humane Society mandates a method of euthanasia the primary benefit of which is that it is actually humane. At a time when the public’s trust in the administration of capital punishment in this country appears to be eroding, the states, on the other hand, have clung to a method whose primary benefit is that it looks humane- but that in reality risks the unnecessary infliction of excruciating pain and suffering.

Alper T. Anesthetizing the public conscience: lethal injection and animal euthanasia (The Lethal Injection Debate: Law and Science). Fordham Urban Law J. 2008;35(4):817-856.

Conscientious Objectors Behind the Counter: Statutory Defenses to Tort Liability for Failure to Dispense Contraceptives

Jennifer E. Spreng

Extract
Conclusion
Pharmacists are already involved in litigation over conscience clauses; it is probably only a matter of time before a woman sues a pharmacist for wrongful conception. Changes in the pharmacy profession and correlative tort duties mean a common law or statutory duty to dispense or sell emergency or daily oral contraceptives is not outside the realm of possibility. Many religious pharmacists have compelling reasons to refuse to sell, but federal Free Exercise protections are currently uncertain. State statutory conscience clauses offer some protection and do not violate the Establishment Clause. Therefore, more states should not hesitate to provide
this protection to all healthcare providers.

Spreng JE. Conscientious Objectors Behind the Counter: Statutory Defenses to Tort Liability for Failure to Dispense Contraceptives. 1 St. Louis U. J. Health L. & Pol’y 337, 337-40 (2008)

(Correspondence) LVADs and the Limits of Autonomy

Jeremy Simon, Ruth Fischbach

Extract
Jeremy Simon’s commentary argues that physicians may decline to deactivate an LVAD even at the request of a capable patient. . . . No doctor may be forced to act against her conscience to end a patient’s life. A physician moved by Simon’s argument would be covered by this doctrine. As for legal precedents, if there have been any cases regarding the removal of destination LVADs, there certainly have not been enough for the case law in this matter to be considered settled. . .

Simon J, Fischbach R. (Correspondence) LVADs and the Limits of Autonomy. Hast Cent Rep. 2008 May-June;5.

Conscientious Commitment

Bernard M Dickens

Extract
Religion has no monopoly on conscience, however. History, both distant and recent, shows how health-care providers and others, driven by conscientious concerns, can defy laws and religious opposition to provide care to vulnerable, dependent populations. They might also defy the medical establishment. Pioneers of the birth control movement were not doctors, and were opposed by medical, state, and religious establishments. As long ago as 1797, Jeremy Bentham advocated means of birth control, and in the following century, John Stuart Mill was briefly imprisoned for distributing birth control handbills. Charles Bradlaugh and Annie Besant were similarly prosecuted, in 1877, for selling pamphlets about birth control.

Dickens BM. Conscientious Commitment. The Lancet. 2008;371(1240-1241.

(Report) Reproductive Rights in Poland: The Effects of the Anti-Abortion Law

Wanda Nowicka

Extract
This report on the monitoring of reproductive rights in Poland was created in the framework of the project financed by the European Commission and realised by the Federation for Women and Family Planning, entitled Proactive monitoring of women’s reproductive rights as a part of human rights in Poland. The report provides a comprehensive overview of reproductive rights in Poland. It deals with the legal issues involved, and the analysis of the Polish legal regulations on reproductive rights (E. Zielińska) deserves special attention, as well as the review of court cases conducted in Poland and at the European Court of Human Rights regarding the lack of access to termination of pregnancy in Poland (A. Bodnar). The report shows the real effects of the current law and social policy with regard to termination of pregnancy, family planning and sexual education (W. Nowicka). Through the use of qualitative research, the report also presents the attitude of the health service to the issues mentioned above and the role of doctors in restricting access to services connected with reproductive health (A. Domaradzka). Moreover, the report publishes guidelines for Poland from international institutions, which aim to improve the respect for human rights regarding reproductive health issues

Nowicka W, editor. Federation for Women and Family Planning. (Report) Reproductive Rights in Poland: The Effects of the Anti-Abortion Law. 2008 Mar;7-97.