This is a commentary on the third legal chapter in the unfortunate story of ABC ('the claimant'), a single mother who sued her father's doctor for his failure to warn her- during her pregnancy-of the ...risk that she might have, or be a carrier of, an untreatable and invariably fatal genetic disease. When, after the birth of her child, she discovered that she did have the disease, she said that the clinicians' failure had deprived her of the opportunity (which she said she would have taken) to terminate the pregnancy. She claimed damages for the continuation of her pregnancy, for psychiatric damage, and for consequential losses.
End-of-life decision making involves clinicians, patients, and relatives; yet, the law in Israel hardly recognises the role of relatives. This raises the question of the law’s impact in practice and, ...hence, whether it should be amended. This issue is examined on the basis of findings from a qualitative, interview-based study conducted in Israel among relatives of dying patients. The findings indicate that there are areas in which clinicians and relatives do not adhere to the law in the end-of-life decision-making process. For example, they do not always ascertain the patient's end-of-life preferences, which ignores a patient's right to autonomy and their right to make informed decisions. The apparent gaps between the actual conduct of clinicians and relatives on the one hand and the directives of the Israeli Dying Patient Act 2005 on the other, lead us to propose several changes to the Act.
As in other areas of medical practice, relatives accompany patients to genetic consultations. However, unlike in other areas, the consultations may be relevant to the relatives’ health because they ...may be at risk of developing the same genetic condition as the patient. The presence of relatives in genetic consultation may affect the decision‐making process and it raises questions about the perception of patient autonomy and the way it is practiced in genetics. However, these issues have not been examined in previous empirical studies. This article aims to fill this gap by reporting findings from a qualitative study with clinicians working in the area of inherited breast cancer. The findings indicate that family presence has an impact on the patient's decisions to undergo genetic testing and preventative operations when she is diagnosed as a carrier. The findings further indicate that, unlike in other areas of medical practice, blood relatives who are present in consultations are perceived by clinicians as patients or potential patients, and this in turn increases their involvement in discussions in the consultation room. Finally, the findings indicate that in genetics, a relational approach to autonomy is applied. Decisions are made in a social context, where the relatives’ views are heard and taken into account. The findings suggest that the conventional bioethical approach to autonomy, which perceives the decision‐making unit as comprising a clinician and an individual patient, is challenged in genetics. The findings thus suggest that bioethicists, lawyers and policy‐makers should consider whether this individualistic approach is still valid and applicable.
Abstract
The practice of posthumous use of sperm raises social, ethical, and legal questions. We examine the issue of who should be allowed to use the sperm—only the deceased’s spouse or the ...deceased’s parents as well—from the perspective of solidarity and relational autonomy. Following a theoretical discussion of various accounts of solidarity and relational autonomy, the legal status of posthumous assisted reproduction is examined in three jurisdictions—the USA, Australia, and Israel—in which most applications to the courts were submitted by the deceased’s parents. In Israel, we found fifteen court rulings on requests for posthumous use of sperm and fourteen in Australia. A smaller number were found in the case of the USA. The analysis reveals that Israeli and Australian courts employ solidarity-based arguments to justify their decisions to allow posthumous use of sperm, particularly when the deceased’s true wishes are unknown. We thus conclude that the posthumous use of sperm can be legally extended to include the deceased’s parents based on solidarity and relational autonomy arguments.
Leading research projects are evidence of the growing public interest in genetic diagnosis and treatment. In this context, disclosure of genetic information to relatives has become a prominent issue. ...However, this involves patient confidentiality, which is grounded in law and conflicts with disclosure to relatives. When conducting a legal and bioethical discussion in this context, it is first necessary to examine how clinicians perceive the role of law in their practice and how they interpret it. A qualitative study was therefore conducted among clinicians in Israel. The findings indicate that the clinicians' approach is more relational than that of the law, in view of their pro-active steps to ensure that familial information reaches the relatives when the patient is reluctant to convey this information themselves. In light of these findings the authors argue that the law can resolve situations of explicit and implicit refusal to inform relatives.
The legal debate about patient autonomy focuses mainly on mental capacity and provision of information. The influence of the family on the decisions of the competent adult patient has scarcely been ...discussed in English medical law. Dominated by the bioethical principle of individual autonomy, the law concentrates on the patient and takes an exclusionary stand regarding relatives. Hence, the aim of this article is to examine the attitude of English law towards the involvement of relatives when patients make decisions, and to investigate the views and experiences of patients and their relatives in reality.
This note concerns the first case to reach the English courts regarding the duty of clinicians to communicate genetic information to a patient's relatives. In 2015, the High Court struck out a claim ...by a patient's daughter against her father's doctors, holding that they neither owed her a common law duty of care nor breached Article 8 of the European Convention on Human Rights. The Court of Appeal (Gloster, Underhill, and Irwin LJJ) unanimously reversed the High Court's decision and allowed the case to proceed to trial. This decision, which we support, might have substantial ramifications for English medical law.
While both medical law and medical ethics have developed in a way that has sought to prioritise patient autonomy, it is less clear whether it has done so in a way that enhances the self-determination ...of patients from non-western backgrounds. In this article, we consider the desire of some patients from non-western backgrounds for family involvement in decision-making and argue that this desire is not catered for effectively in either medical law or medical ethics. We examine an alternative approach based on relational autonomy that might serve both to allow such patients to exercise their self-determination while still allowing them to include family members in the decision-making process.
This comment analyses the recent High Court's decision in 'ABC v St George's Healthcare NHS Trust'. In this case, the court struck out a claim brought by a patient's daughter against her father's ...doctors for their failure to warn her of his hereditary disease. The claimant argued that the doctors' failure caused her harm and violated her rights under the European Convention on Human Rights. It is argued in this comment that the judge should have accepted the claimant's application.
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