Medicine and law
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The author discusses the concept of professional guidelines in medicine and their relationship to potential malpractice accusations. He cites a case of omission to give a patient prophylactic medicine against post-operative thrombosis, as previously recommended in a clinical guideline. This paper develops the discussion of the problems of professional autonomy in the light of standards of medical care being increasingly governed by clinical guidelines. The question of legal liability of medical practitioners in these situations is explored.
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Decision-making capacity for treatment and research raises complex conceptual issues. Given the fact that both considerations of respect for patient autonomy and beneficence/harm prevention have moral relevance in many cases, in the practice of health care the need exists to balance both in a moral responsible way. The moral concept of (mental) capacity or decisional capacity has a role to play in this balancing process. ⋯ A first alternative focuses on issues of emotion and narrative; a second on identity and identification, and a third on dialogue and deliberation. By paying attention to the way in which people interprete their world (not only by cognition, but also by emotion), and how they shape their lives by processes of identification and communication, a broader perspective on capacity assessment in health care can be developed. Above that, these alternative approaches are less focused on the assessment of (in)capacity and more on enabling a person to become more competent through a process of empowerment, participation, and shared decision-making.
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The concept of informed consent in clinical trials is well understood, although when viewed from the perspective of legal consent and valid consent, problems arise. Legal consent can be as simple as the signing of a document of informed consent. ⋯ Since most pre-clinical data is based largely on animal experiments, and animal data cannot be extrapolated to human beings with any degree of confidence, valid consent cannot be provided by the participant. It is therefore suggested that animal experiments be replaced with human-based methodologies, which rely on modern methods of molecular biology and human genetics.