You're currently on:

Back Issues and Articles
Back Issues and Articles

Contents - JLME - 2013 Volume 41: 1
Table of Contents
  1. Table Of Contents
Letter From The Editor
  1. Letter From The Editor
Introduction
  1. Global Health Challenges and the Role of Law
Symposium Articles
  1. Tackling the Global NCD Crisis: Innovations in Law and Governance
  2. Law as a Tool in "The War on Obesity": Useful Interventions, Maybe, But, First, What's the Problem?
  3. Global Health, Vulnerable Populations, and Law
  4. Protecting Rights and Building Capacities: Challenges to Global Mental Health Policy in Light of the Convention on the Rights of Persons with Disabilities
  5. The Role of Law in Ameliorating Global Inequalities in Indigenous Peoples' Health
  6. A Survey of International Legal Instruments to Examine Their Effectiveness in Improving Global Health and in Realizing Health Rights
  7. Human Rights and Maternal Health: Exploring the Effectiveness of the Alyne Decision
  8. The Debatable Role of Courts in Brazil's Health Care System: Does Litigation Harm or Help?
  9. Is There a Human Right to Private Health Care?
  10. Tobacco Control Litigation: Broader Impacts on Health Rights Adjudication
  11. Pharmaceutical Knowledge Governance: A Human Rights Perspective
  12. Patents and Human Rights: A Heterodox Analysis
  13. The High Price of "Free" Trade: U.S. Trade Agreements and Access to Medicines
  14. Transnational Trade in Human Eggs: Law, Policy, and (In)Action in Canada
  15. Global Trade and Assisted Reproductive Technologies: Regulatory Challenges in International Surrogacy
  16. What's Missing? Discussing Stem Cell Translational Research in Educational Information on Stem Cell "Tourism"
  17. Transplant Tourism: The Ethics and Regulation of International Markets for Organs
  18. Medical Tourism's Impact on Health Care Equity and Access in Low- and Middle-Income Countries: Making the Case for Regulation
Independent Articles
  1. Evaluating Equity Critiques in Food Policy: The Case of Sugar-Sweetened Beverages
  2. Making Residency Work Hour Rules Work
  3. Brightening Up: The Effect of the Physician Payment Sunshine Act on Existing Regulation of Pharmaceutical Marketing
  4. Transparent Vessels?: What Organ Donors Should Be Allowed to Know about Their Recipients
  5. Physician Participation in Executions, the Morality of Capital Punishment, and the Practical Implications of Their Relationship
  6. Abuses and Apologies: Irresponsible Conduct of Human Subjects Research in Latin America
Columns
  1. Reconsidering the Legality of Cigarette Smoking Advertisements on Television
  2. The Barnes Case: Taking Difficult Futility Cases Public
Calendar
  1. Calendar
Table of Contents
Table Of Contents
ASLME - [PDF] (Free Download)
THE JOURNAL OF LAW, MEDICINE & ETHICS CONTENTS VOLUME 41:1 SPRING 2013 16 Tackling the Global NCD Crisis: Innovations in Law and Governance - Bryan Thomas and Lawrence O. Gostin 35 million people die annually of non-communicable diseases (NCDs), 80% of them in low- and middle-income countries - representing a marked epidemiological transition from infectious to chronic diseases and from richer to poorer countries. The total number of NCDs is projected to rise by 17% over the coming decade, absent significant interventions. The NCD epidemic poses unique governance challenges: the causes are multifactorial, the affected populations diffuse, and effective responses require sustained multi-sectorial cooperation. The authors propose a range of regulatory options available at the domestic level, including stricter food labeling laws, regulation of food advertisements, tax incentives for healthy lifestyle choices, changes to the built environment, and direct regulation of food and drink producers. Given the realities of globalization, such interventions require global cooperation. In 2011, the UN General Assembly held a High-level meeting on NCDs, setting a global target of a 25% reduction in premature mortality from NCDs by 2025. Yet concrete plans and resource commitments for reaching this goal are not yet in the offing, and the window is rapidly closing for achieving these targets through prevention - as opposed to treatment, which is more costly. Innovative global governance for health is urgently needed to engage private industry and civil society in the global response to the NCD crisis.
Letter From the Editor
Letter From The Editor
ASLME - [PDF]

The Journal of Law, Medicine & Ethics frequently turns its eyes upon our world in order to place the issues we explore in a global context. In recent symposiums, for example, we have explored the role of pharmaceutical firms in international research and the proper way to conduct and return such research results. In this issue, we examine the evergreen question of the right to health care. Our guest editors Trudo Lemmens and Colleen Flood and their authors ask some basic, fundamental questions, including: Do people have a right to health care? How do we attempt to bridge the obvious and startling disparities in health care amongst diverse communities? Is medical tourism the answer? Most importantly, they ask questions about fairness: how are we, as an interconnected society, going to provide even a baseline of rudimentary health care to a growing world population in which economic disparities are increasing at an unprecedented rate? There is no more important question for anyone who thinks about health care on a global scale.
Introductions
Global Health Challenges and the Role of Law
Colleen M. Flood and Trudo Lemmens - [PDF]

Health rights have grown very popular. First appearing more than 60 years ago in the UN Universal Declaration on Human Rights, health rights, both general and specific, now appear in many other international agreements, as well as in domestic state constitutions and statutes. Despite the proliferation of health rights and the recognition of health-related components of other rights (and an accompanying rise in litigation), we still face staggering disparities in health and access to health care both within nation states and across the globe. Health care spending per capita for the top 5% of world population is nearly 4,500 times that for the lowest 20%. Each year 2.5 million people die annually from vaccine-preventable diseases and close to 7 million children under the age of 5 died in 2011 from malnutrition and mostly preventable diseases. In this special edition, we collectively explore to what extent law has and could make a difference in meeting global health challenges.
Symposium Articles
Tackling the Global NCD Crisis: Innovations in Law and Governance
Bryan Thomas and Lawrence O. Gostin - [PDF]

35 million people die annually of non-communicable diseases (NCDs), 80% of them in low- and middle-income countries - representing a marked epidemiological transition from infectious to chronic diseases and from richer to poorer countries. The total number of NCDs is projected to rise by 17% over the coming decade, absent significant interventions. The NCD epidemic poses unique governance challenges: the causes are multifactorial, the affected populations diffuse, and effective responses require sustained multi-sectorial cooperation. The authors propose a range of regulatory options available at the domestic level, including stricter food labeling laws, regulation of food advertisements, tax incentives for healthy lifestyle choices, changes to the built environment, and direct regulation of food and drink producers. Given the realities of globalization, such interventions require global cooperation. In 2011, the UN General Assembly held a High-level meeting on NCDs, setting a global target of a 25% reduction in premature mortality from NCDs by 2025. Yet concrete plans and resource commitments for reaching this goal are not yet in the offing, and the window is rapidly closing for achieving these targets through prevention - as opposed to treatment, which is more costly. Innovative global governance for health is urgently needed to engage private industry and civil society in the global response to the NCD crisis.
Law as a Tool in "The War on Obesity": Useful Interventions, Maybe, But, First, What's the Problem?
W. A. Bogart - [PDF]

This article explores the effectiveness of legal interventions to promote healthier eating/drinking and exercise in responding to obesity. Undue emphasis on weight loss and prevention of excess gain have largely been failures and have fueled prejudice against fat people. A major challenge lies in shifting norms: away from stigmatization of the obese and towards more nutritious eating/drinking and increased activity with acceptance of bodies in all shapes and sizes. Part of the enormity of this challenge lies in the complex effects of law and its relationship with norms, including unintended consequences of regulation To illustrate such complications, the paper examines two interventions and the actual effects that they have produced (or could under differing conditions): junk food taxes, particularly on SSBs (sugar sweetened beverages), and restriction of advertising to children, especially the ban in Quebec.
Global Health, Vulnerable Populations, and Law
Solomon R. Benatar - [PDF]

Given the fragility of individual and population well being in an interdependent world threatened by many overlapping crises, the suggestion is made that new legal mechanisms have the robust potential to reduce human vulnerability locally and globally.
Protecting Rights and Building Capacities: Challenges to Global Mental Health Policy in Light of the Convention on the Rights of Persons with Disabilities
Sheila Wildeman - [PDF]

The World Health Organization (WHO) has identified mental health as a priority for global health promotion and international development to be targeted through promulgation of evidence-based medical practices, health systems reform, and respect for human rights. Yet these overlapping strategies are marked by tensions as the historical primacy of expert-led initiatives is increasingly subject to challenge by new social movements - in particular, disabled persons' organizations (DPOs). These tensions come into focus upon situating the WHO's mental health policy initiatives in light of certain controversies arising under the Convention on the Rights of Persons with Disabilities (CRPD), particularly as it applies to persons with mental (psychosocial) disabilities. I examine two such controversies - concerning, respectively, the legitimacy of involuntary psychiatric interventions and the legitimacy of regimes of substitute decision-making. These controversies illustrate the radical challenges to global and domestic mental health policy that have gained new momentum through the participation of DPOs in the CRPD process. At the same time, they illustrate the need for ongoing, inclusive forums for deliberation at the nexus of mental health policy and human rights, aimed at enabling human flourishing within a framework of respect for diversity.
The Role of Law in Ameliorating Global Inequalities in Indigenous Peoples' Health
Constance MacIntosh - [PDF]

This article explores aspects of law's potential for ameliorating the health deficit which Indigenous peoples experience around the globe, with a focus on international law and international legal forums. It considers the challenges and benefits of using these tools and forums to affect changes within domestic systems.
A Survey of International Legal Instruments to Examine Their Effectiveness in Improving Global Health and in Realizing Health Rights
Arthur Wilson and Abdallah S. Daar - [PDF]

Many global health issues, almost by definition, do not recognize state borders and therefore require bi-lateral, or more often multi-lateral international solutions. These latter solutions are articulated in international instruments (declarations, conventions, treaties, constitutions of international bodies, etc). However, the gap between formal adoption of such instruments by signatory states and substantive implementation of the articulated solutions can be very wide.
Human Rights and Maternal Health: Exploring the Effectiveness of the Alyne Decision
Rebecca J. Cook - [PDF]

This article explores the effectiveness of the decision of the Committee on the Elimination of Discrimination against Women in the case of Alyne da Silva Pimentel Teixeira (deceased) v. Brazil, concerning a poor, Afro-Brazilian woman. This is the first decision of an international human rights treaty body to hold a state accountable for its failure to prevent an avoidable death in childbirth. Assessing the future effectiveness of this decision might be undertaken concretely by determining the degree of Brazil's actual compliance with the Committee's recommendations, and how this decision influences pending domestic litigation arising from the maternal death. Alternative approaches include: determining whether, over time, the decision leads to the elimination of discrimination against women of poor, minority racial status in the health sector, and if it narrows the wide gap between rates of maternal mortality of poor, Afro-Brazilian women and the country's general female population. Determining the effectiveness of this decision will guide whether to pursue a more general strategy of judicializing maternal mortality.
The Debatable Role of Courts in Brazil's Health Care System: Does Litigation Harm or Help?
Mariana Mota Prado - [PDF]

Recent studies of the Brazilian case suggest that successful litigation can have regressive effects and negatively impact the health care system. While the data to support this claim is not conclusive, this paper assumes that such immediate regressive effects are indeed taking place, but asks if these are the only consequences that should be analyzed in assessing the impact of right to health litigation in Brazil. The answer is no. The current perspective adopted to assess right to health litigation in Brazil is too narrow. Other consequences can and should be considered in analyzing the overall impact of litigation. To go beyond the set of questions asked by the existing experts on the topic, this paper analyzes whether the right to health litigation in Brazil has the potential, and could be generating: (i) policy changes within the health care system; (ii) institutional changes within the health care system; and (iii) institutional changes outside the health care system. After presenting anecdotal evidence that suggests these three types of changes may be happening in Brazil, I conclude the paper by discussing what would be required to assess them, and how these changes may affect our overall assessment of the more immediate and supposedly negative impact that litigation has had on the system.
Is There a Human Right to Private Health Care?
Aeyal Gross - [PDF]

In recent years we have noticed an increase in the turn to rights analysis in litigation relating to access to health care. Examining litigation, we can notice a contradiction between on the one hand the ability of the right to health to reinforce privatization and commodification of health care, by rearticulating claims to private health care in terms of human rights, and on the other hand, its ability to reinforce and reinstate public values, especially that of equality, against the background of privatization and commodification. While many hope that rights discourse will do the latter, and secure that access to health care should occur on the basis of need as opposed to ability to pay, it has actually been used to attempt to advance arguments that will allow access to private or semiprivate health insurance in ways that may exacerbate inequality. These types of arguments won ground in the Canadian Supreme Court, but were rejected by the Israeli Supreme Court. In order to avoid this co-optation of right to health, a notion of rights that incorporates the principles of substantive equality is required. Otherwise, one of the unintended consequences of inserting rights analysis into public health care may be that it will reinforce rather than challenge privatization in a way that may increase inequalities.
Tobacco Control Litigation: Broader Impacts on Health Rights Adjudication
Oscar A. Cabrera and Juan Carballo - [PDF]

This paper argues that there are instances in which tobacco control litigation is strengthening the justiciability of the right to health and health-related rights. This is happening in different parts of the world, but in particular in Latin America. In part this is because, to a certain extent, tobacco control litigation based on fundamental rights overcomes the traditional arguments against economic, social and cultural rights adjudication: the anti-democratic argument, the lack of technical competency argument, the problem of the misallocation of scarce public resources and the problem of the implementation of judicial decisions. As we analyzed in this paper, tobacco control cases based on fundamental rights are allowing courts to elaborate on broader standards of judicial adjudication of social rights, e.g., expand notions of standing, progressive realization, and state obligations enshrined in the right to health. Key to this judicial trend is the Framework Convention on Tobacco Control, which provides a legal standard - supported by scientific evidence - defining concrete measures states should take to address the tobacco epidemic, and thus giving content to the right to health as it relates to tobacco control.
Pharmaceutical Knowledge Governance: A Human Rights Perspective
Trudo Lemmens - [PDF]

Industry control over the production and distribution of pharmaceutical safety and efficacy data has become a serious public health and health care funding concern. Various recent scandals, several involving the use of flawed representations of scientific data in the most influential medical journals, highlight the urgency of enhancing pharmaceutical knowledge governance. This paper analyzes why this is a human rights concern and what difference a human rights analysis can make. The paper first identifies the challenges associated with the current knowledge deficit. It then discusses, based on an analysis of case law, how various human rights associated interests can be invoked to support the claim that states have an obligation to actively contribute to independent knowledge governance, for example through ensuring clinical trials transparency. The paper further discusses a conceptual use of human rights, as a methodology which requires a comprehensive analysis of the different interwoven historical, economic, cultural, and social factors that contribute to the problem. Such an analysis reveals that historically grown drug regulations have, in fact, contributed directly to industry control over pharmaceutical knowledge production. This type of finding should inform needed reforms of drug regulation. The paper ends with a recommendation for a comprehensive global response to the problem of pharmaceutical knowledge governance.
Patents and Human Rights: A Heterodox Analysis
E. Richard Gold - [PDF]

Much international debate over access to medicines focuses on whether patent law accords with international human rights law. This article argues that this is the wrong question to ask. Following an analysis of both patent and human rights law, this article suggests that the better approach is to focus on national debates over the best calibration of patent law to achieve national objectives.
The High Price of "Free" Trade: U.S. Trade Agreements and Access to Medicines
Ruth Lopert and Deborah Gleeson - [PDF]

The United States' pursuit of increasingly TRIPS-Plus levels of intellectual property protection for medicines in bilateral and regional trade agreements is well recognized. Less so, however, are U.S. efforts through these agreements to influence and constrain the pharmaceutical coverage programs of its trading partners. Although arguably unsuccessful in the Australia- U.S. Free Trade Agreement (AUSFTA), the U.S. nevertheless succeeded in its bilateral FTA with South Korea (KORUS) in establishing prescriptive provisions pertaining to the operation of coverage and reimbursement programs for medicines and medical devices, which have the potential to adversely impact future access in that country. More recently, draft texts leaked from the current Trans Pacific Partnership Agreement (TPPA) negotiations show that U.S. objectives include not only AUSFTA-Plus and KORUS-Plus IP provisions but also ambitious inroads into the domestic health programs of its TPPA partners. This highlights the apparent conflict between trade goals - pursued through multilateral legal instruments to promote economic "health" - and public health objectives, such as the development of treatments for neglected diseases, the pursuit of efficiency and equity in priority setting, and the procurement of medicines at prices that reflect their therapeutic value and facilitate affordable access.
Transnational Trade in Human Eggs: Law, Policy, and (In)Action in Canada
Jocelyn Downie and Francoise Baylis - [PDF]

In this paper, we provide as accurate a picture as possible of transnational trade in human eggs involving Canadians. We explain the legal status in Canada, and call for reform in the regulation, of such trade.
Global Trade and Assisted Reproductive Technologies: Regulatory Challenges in International Surrogacy
Erin Nelson - [PDF]

International surrogacy is an increasingly common phenomenon and an important global health challenge. Legal rules are a key consideration for the participants in international surrogacy arrangements. In some cases the law can help to resolve the complex issues that arise in this context, but it is important to consider the role played by law in contributing to the complex conflicts that such arrangements can generate.
What's Missing? Discussing Stem Cell Translational Research in Educational Information on Stem Cell "Tourism"
Zubin Master, Amy Zarzeczny, Christen Rachul, Timothy Caulfield - [PDF]

Stem cell tourism is a growing industry in which patients pursue unproven stem cell therapies for a wide variety of illnesses and conditions. It is a challenging market to regulate due to a number of factors including its international, online, direct-to-consumer approach. Calls to provide education and information to patients, their families, physicians, and the general public about the risks associated with stem cell tourism are mounting. Initial studies examining the perceptions of patients who have pursued stem cell tourism indicate many are highly critical of the research and regulatory systems in their home countries and believe them to be stagnant and unresponsive to patient needs. We suggest that educational material should include an explanation of the translational research process, in addition to other aspects of stem cell tourism, as one means to help promote greater understanding and, ideally, curb patient demand for unproven stem cell interventions. The material provided must stress that strong scientific research is required in order for therapies to be safe and have a greater chance at being effective. Through an analysis of educational material on stem cell tourism and translational stem cell research from patient groups and scientific societies, we describe essential elements that should be conveyed in educational material provided to patients. Although we support the broad dissemination of educational material on stem cell translational research, we also acknowledge that education may simply not be enough to engender patient and public trust in domestic research and regulatory systems. However, promoting patient autonomy by providing good quality information to patients so they can make better informed decisions is valuable in itself, irrespective of whether it serves as an effective deterrent of stem cell tourism.
Transplant Tourism: The Ethics and Regulation of International Markets for Organs
I. Glenn Cohen - [PDF]

"Medical Tourism" is the travel of residents of one country to another country for treatment. In this article I focus on travel abroad to purchase organs for transplant, what I will call "Transplant Tourism." With the exception of Iran, organ sale is illegal across the globe, but many destination countries have thriving black markets, either due to their willful failure to police the practice or more good faith lack of resources to detect it. I focus on the sale of kidneys, the most common subject of transplant tourism, though much of what I say could be applied to other organs as well. Part I briefly reviews some data on sellers, recipients, and brokers. Part II discusses the bioethical issues posed by the trade, and Part III focuses on potential regulation to deal with these issues.
Medical Tourism's Impact on Health Care Equity and Access in Low- and Middle-Income Countries: Making the Case for Regulation
Y.Y. Brandon Chen and Colleen M. Flood - [PDF]

There is currently an evidentiary gap in the scholarship concerning medical tourism's impact on low- and middle-income destination countries (LMICs). This article reviews relevant evidence that exists and concludes that there are signs of correlation between medical tourism and the expansion of private, technology- intensive health care in LMICs, which has largely remained out of reach for the majority of the local patients. In light of this health care inequity between local residents and medical tourists in LMICs, we argue that the presumption should not be in favor of medical tourism and that governments have a legitimate interest in seeking to regulate this industry to ensure that the net effects for their citizens is positive. Moreover, sending countries, particularly those in the developed world, have the responsibility to adopt public policies to diminish demand on the part of their citizens for medical tourism and to work with LMICs to ensure that the growth of medical tourism does not occur at the expense of the poorest of the poor.
Independent Articles
Evaluating Equity Critiques in Food Policy: The Case of Sugar-Sweetened Beverages
Anne Barnhill and Katherine F. King - [PDF]

Many anti-obesity policies face a variety of ethical objections. We consider one kind of anti-obesity policy - modifications to food assistance programs meant to improve participants' diet - and one kind of criticism of these policies, that they are inequitable. We take as our example the recent, unsuccessful effort by New York State to exclude sweetened beverages from the items eligible for purchase in New York City with Supplemental Nutrition Support Program (SNAP) assistance (i.e., food stamps). We distinguish two equity-based ethical objections that were made to the sweetened beverage exclusion, and analyze these objections in terms of the theoretical notions of distributive equality and social equality. First, the sweetened beverage exclusion is unfair or violates distributive equality because it restricts the consumer choice of SNAP participants relative to non-participants. Second, it is disrespectful or violates social equality to prohibit SNAP participants from purchasing sweetened beverages with food stamps. We conclude that neither equity-based ethical objection is decisive, and that the proposed exclusion of sugar-sweetened beverages is not a violation of either distributive or social equality.
Making Residency Work Hour Rules Work
I. Glenn Cohen, Charles A. Czeisler, and Christopher P. Landrigan - [PDF]

In July 2011, the ACGME implemented new rules that limit interns to 16 hours of work in a row, but continue to allow 2nd-year and higher resident physicians to work for up to 28 consecutive hours. Whether the ACGME's 2011 work hour limits went too far or did not go far enough has been hotly debated. In this article, we do not seek to re-open the debate about whether these standards get matters exactly right. Instead, we wish to address the issue of effective enforcement. That is, now that new work hour limits have been established, and given that the ACGME has been unable to enforce work hour limits effectively on its own, what is the best way to make sure the new limits are followed in order to reduce harm to residents, patients, and others due to sleep-deprived residents? We focus on three possible national approaches to the problem, one rooted in funding, one rooted in disclosure, and one rooted in tort law.
Brightening Up: The Effect of the Physician Payment Sunshine Act on Existing Regulation of Pharmaceutical Marketing
Igor Gorlach and Genevieve Pham-Kanter - [PDF]

With the passage of the Physician Payment Sunshine Act as part of the federal health care reform law, pharmaceutical manufacturers are now required to disclose a wide range of payments made by manufacturers to physicians. We review current state regulation of pharmaceutical marketing and consider how the federal sunshine provision will affect existing marketing regulation. We analyze the legal and practical implications of the Physician Payment Sunshine Act.
Transparent Vessels?: What Organ Donors Should Be Allowed to Know about Their Recipients
Richard H. Dees - [PDF]

A live organ donor needs to be informed carefully about the risks and benefits of her donation for both herself and her recipient, but a key ethical question is how much the donor is allowed to know about the recipient. To decide this question, we must first decide whether, out of respect for autonomy, the donor should decide how much she wants to know, or whether the transplant team, as the professionals, should decide what information is relevant to the donor's decision. I argue that the transplant team should control the process. While the donor has the right to know enough about her recipient to assess the risk to herself and the prospects for a successful donation, she is not entitled to any further information, no matter how much she wants it. In particular, I argue that donors are not entitled to information that has not been shown to affect outcomes, but that they should be told if a recipient is HIV or that he has rejected a previous organ due to non-compliance. Donors have a right to make decisions with all the information they need, but recipients need not make their lives completely transparent.
Physician Participation in Executions, the Morality of Capital Punishment, and the Practical Implications of Their Relationship
Paul Litton - [PDF]

Evidence that some executed prisoners suffered excruciating pain has reinvigorated the ethical debate about physician participation in executions. In widely publicized litigation, death row inmates argue that participation of anesthesiologists in their execution is constitutionally required to minimize the risk of unnecessary suffering. For many years, commentators supported the ethical ban on physician participation reflected in codes of professional medical organizations. However, a recent wave of scholarship concurs with inmate advocates, urging the law to require or permit physician participation.
Abuses and Apologies: Irresponsible Conduct of Human Subjects Research in Latin America
Julie M. Aultman - [PDF]

This paper explores the vulnerability of Latin American human subjects, and how their vulnerability is ignored due to the complexities and inconsistencies of oversight committees and institutional policies. Secondly, the concept of apology is examined and its meaning to victims of past research abuses.
Columns
Reconsidering the Legality of Cigarette Smoking Advertisements on Television
James G. Hodge, Jr., Veda Collmer, Daniel G. Orenstein, Chase Millea, and Laura Van Buren - [PDF]

Television advertisements depicting the use of electronic cigarettes have recently exposed minors to images of smoking behaviors. While these advertisements are currently legal, existing laws should be interpreted or expanded to ban the commercial depiction of smoking behaviors with any product that resembles a cigarette to shield minors from potentially influential advertising.
The Barnes Case: Taking Difficult Futility Cases Public
Ruth A. Mickelsen, Daniel S. Bernstein, Mary Faith Marshall, and Steven H. Miles - [PDF]

Futility disputes are increasing and courts are slowly abandoning their historical reluctance to engage these contentious issues, particularly when confronted with inappropriate surrogate demands for aggressive treatment. Use of the judicial system to resolve futility disputes inevitably brings media attention and requires clinicians, hospitals, and families to debate these deep moral conflicts in the public eye. A recent case in Minnesota, In re Emergency Guardianship of Albert Barnes, explores this emerging trend and the complex responsibilities of clinicians and hospital administrators seeking to replace an unfaithful surrogate demanding aggressive therapy. Use of the courts requires the coordinated commitment of significant institutional resources, management of intense media scrutiny and individual and organizational courage to enter the unpredictable world of litigation. Given the dearth of legislative guidance on medical futility, individual clinicians and institutions will continue to bear the difficult responsibility for resolution of individual futility disputes. The Barnes case illustrates how one institution successfully used the judicial system to replace an unfaithful surrogate, cease the provision of inappropriate aggressive care, and stimulate a community dialogue about appropriate care at the end of life.
Calendar
Calendar
ASLME - [PDF]