Higher courts sometimes assess the constitutionality of law by working through a concrete case, other times by reasoning about the underlying question in a more abstract way. Prior research has found that the degree of concreteness or abstraction with which an issue is formulated can influence people's prescriptive views: For instance, people often endorse punishment for concrete misdeeds that they would oppose if the circumstances were described abstractly. We sought to understand whether the so-called ‘abstract/concrete paradox’ also jeopardizes the consistency (...) of judicial reasoning. In a series of experiments, both lay and professional judges sometimes reached opposite conclusions when reasoning about concrete cases versus the underlying issues formulated in abstract terms. This effect emerged whether participants reasoned with broad principles, such as human dignity, or narrow rules, and was largest among individuals high in trait empathy. Finally, to understand whether people reflectively endorse the discrepancy between abstract and concrete resolutions, we examined their reactions when evaluating both, either simultaneously or sequentially. These approaches revealed no single pattern across lay and expert populations, or exploratory and confirmatory studies. Taken together, our studies suggest that empathic concern plays a greater role in guiding the judicial resolution of concrete cases than in illuminating judges' professed standards—which may result in concrete decisions in violation of their own abstract principles. (shrink)

Purpose. The study seeks to clarify the preconditions for moral and legal decision-making based on the identification of axiological foundations that correlate with the moral perceptions of good and evil and psychological phenomena such as emotions. Theoretical basis of the study is to apply comparative, axiological, systemic methods. This methodological approach allows us to analyze and disclose the essence of the process of moral and legal decision-making on the basis of certain axiological prerequisites and (...) enables to substantiate the connection between the axiological and psychological aspects of taking moral and legal decisions. Originality of the work is to broaden the perceptions of the processes and mechanisms for making moral and legal decisions, which are based on the axiological dimension, in particular on the system of reference individual and social values. The study shows that every necessary moral and legal decision taken by a person is futurologically balanced in the emotional sense, rationally reasoned and morally perceptible in the context of man’s beliefs about good and evil, and realized with necessity in the personal system of reference values that determines the style and manner of individual and social behaviour in the context of material and spiritual values and is an axiological foundation for making all types of moral and legal decisions. Conclusions. Moral and legal decision-making is a social process that is connected with such a social essence of a person as rationality, which gives an opportunity to act axiologically. A person makes moral and legal decisions in a complex way, based on the unity of the moral, axiological and psychological aspects of his worldview, which are grounded on the system of reference values. (shrink)

Reasoning by jurors concerning whether an accused person should be convicted of committing a crime is a kind of casual inference. Jurors need to decide whether the evidence in the case was caused by the accused’s criminal action or by some other cause. This paper compares two computational models of casual inference: explanatory coherence and Bayesian networks. Both models can be applied to legal episodes such as the von Bu¨low trials. There are psychological and computational reasons for preferring the (...) explanatory coherence account of legal inference. (shrink)

In this paper I argue that the rationality of law and legal decision making would be enhanced by a systematic attempt to recognize and respond to the implications of empirical uncertainty for policy making and decision making. Admission of uncertainty about the accuracy of facts and the validity of assumptions relied on to make inferences of fact is commonly avoided in law because it raises the spectre of paralysis of the capacity to decide issues (...) authoritatively. The roots of this short-sighted view are found in primitive mechanical models of relationships in the empirical and social world – those of objective causality and determinism. Insofar as it is believed that if we had sufficient data a clear and unequivocal answer would be available to each question, admission of uncertainty is seen as a sign of insufficiency, incompetence, impotence, and is avoided whenever a decision that must be seen to be based on valid reasons, cannot be avoided. Avoidance of some decisions, duplicity in others, is the result. -/- Decision-making must be restructured to recognize the provisional and context-bound validity and relevance of the models we use to conceptualize and order our understanding of phenomena, and to utilize this awareness as an instrument in the production of legal policies and decisions that will be authoritative precisely because they are honestly accurate and socially responsible. The paper makes a start on such a re-structuring of the legal process by exploring the implications of the observation that if law is to be “just”: 1) legal policy must be based on accurate information and rationally related to social goals; and 2) decisions applying policy to individual fact situations must be based on assumptions that are both relevant and accurate. -/- Reasons for determinations of fact must be given, otherwise the presumption that the trier of fact is “reasonable” is an unconditional licence to use private modes of logic and theories of social and natural science. What is not disclosed cannot be challenged on grounds of invalidity or irrelevance. Use of “objective validity” as a standard to evaluate conclusions made by the trier of fact in contentious cases would only serve to beg all important questions by concealing: 1) fundamental normative conflict, and 2) the limited nature and applicability of many validity claims. -/- Our use of the phrases “undue risk,” “public interest,” “reasonable,” and “necessary,” reflects the weight we choose to give conflicting social values and goals when we must make decisions in relative ignorance of all the consequences. “Objective criteria” are of limited utility in legal decision-making because their social meaning is derivative. Policy generation in the absence of any coherent conceptual-normative framework, use of vague terminology in legislation stating policy, and the absence of rational means to distinguish between individual cases to which decision-makers are required by law to apply policy, make it inevitable that many legal “decisions” made in the guise of determinations of objective fact, are charades, an arbitrary, capricious, intuitive, subjective (and thus private) use of public decision-making power. -/- Law must alter its aspirations and recognize that rational decision-making is a process that can occur only within parameters set by present knowledge and societal preference structures. Only by working with the constraints imposed by these parameters is it possible to achieve “just” decisions. Where no rational basis for differentiating cases exists, “individualized justice” must be avoided and public policy articulated in law applied uniformly to all cases in a class. The terms “reasonable” and “necessary,” used to describe policy and its consequences for specific cases, must be understood to represent provisional societal assessments, attempts to implement societal preference structures in the face of limited knowledge. Heightened awareness of the limited nature of our knowledge can only result in legal policies that have a more explicit normative basis. (shrink)

Background Abortion is one of the most common gynaecological procedures. It is related to personal, social, and economic reasons under a legal term that is recognised as a common sexual and reproductive right in most of countries. However, making the decision to abort is complex, because it is politicised and is often framed in public discourse related to moral or ethical issues beyond women’s experiences. Therefore, it is subject to medical criteria, religious evaluations, and sociological analysis. Purpouse (...) The aim of this synthesis of qualitative studies was to synthesise the decision-making experiences of women who legally aborted. Research design and method The Noblit and Hare’s interpretive meta‐ethnography was conducted, and it was written in accordance with the eMERGe meta‐ethnography reporting guidance. Ten studies met the research objective and inclusion criteria, after a comprehensive systematic search strategy in five databases. Findings The metaphor “The wrestling between why and what will happen next” and three themes emerged from the data analysis: (1) Forces that incite the arm wrestling; (2) Facing social stigma; and (3) Defeated by a greater rival. The metaphor provided interpretive experiences of the moral conflict experienced by women who decided to have an abortion and emerged from the confrontation of the reasons why they decided to abort and the social repercussions that making the decision entails. The result of the struggle was loneliness and vulnerability. Conclusion The lines of action impact policy makers, the media, and health professionals. Actions should focus on the de-stigmatisation and normalisation of abortion, the use of appropriate language, and the training and sensitisation of health professionals. (shrink)

It is well known that experts’ opinion and testimony take on a decisive weight in judicial fact-finding, raising issues and perplexities that have long been under scholarly scrutiny. In this paper I argue that expert’s opinions have a much wider impact on legal decision-making. In particular, they may generate a problem that I will call ‘the opacity of law’. A legal text, such as a statute or regulation, becomes opaque if a legal authority is not (...) able to grasp its full linguistic content but is nevertheless in a position to use it, thanks to an expert’ opinion, in legal decision-making. When this occurs, not only do experts contribute to fact-finding but also to determining the content of the law. In the paper I analyse the linguistic and cognitive sources of this phenomenon, its characteristics and troublesome consequences, and the different kinds of opacity that may affect legal decision-making. (shrink)

The author singles out various conceptions of rationality used in practical legal discourse: formal and substantive rationality, instrumental goal‐ and means‐rationality, communicative rationality. Practical rationality is expressed in decisions justified by epistemic and axiological premises according to the rules of justificatory reasoning. Five levels of analysis of this justification are identified. Rules, principles and evaluations are used as justifying arguments and their characteristics determine the dimensions of rationality of decision depending on the features of rules, various conceptions of (...) principles, and kinds of relativisation of evaluations. The dimensions of legal rationality depend mainly on three singled out conceptions of rationality, i.e., formal rationality dealing with the deep structure of justification, instrumentally oriented rationality as content of justifiability, and communicative rationality linked with the pragmatics of human interaction. Legitimacy, according to the presented analysis, appears as a subclass of external justification dealing with axiological premisses in terms of instrumental rationality and/or communicative rationality. (shrink)

Courts frequently engage in the weighing of competing values; perhaps most obviously, such balancing constitutes an integral aspect of proportionality analysis in many states’ constitutional law. However, such balancing raises a difficult theoretical question: What does it mean that one value “outweighs” another in any particular case? If the values at issue are incommensurable — as they often will be — such balancing may appear to break down. As Justice Scalia has stated, balancing in the presence of incommensurable values “is (...) more like judging whether a particular line is longer than a particular rock is heavy.” It may appear that if a judge is asked in a particular case to decide, for example, whether a state interest is sufficiently strong to justify the limitation of a constitutional right, he will be forced to a) either abandon the notion of a genuine plurality of values, or b) make an arbitrary decision. This article argues that neither of these options need be accepted and that rational choice is indeed possible in the presence of incommensurable values. Specifically, it contends that the Nash bargaining solution provides a means, at least in certain circumstances, of rationally understanding and undertaking the weighing of distinct and mutually irreducible values which adjudication frequently requires. The Nash framework can both elucidate proportionality analysis by providing a social choice-based framework for understanding the structure of proportionality analysis and also justify proportionality analysis by demonstrating that the weighing of competing values is not necessarily mere judicial hand-waving. (shrink)

Legal processes very often require judges and jurors to make determinations as to what mental states other individuals were in at a particular point in time, i.e., what they intended, believed, con...

Health care decision making for patients without decisional capacity is ethically and legally challenging. Advance directives (living wills) have proved to be of limited usefulness in clinical practice. Therefore, academic attention should focus more on substitute decision making by the next of kin. In this article, we comparatively analyse the legal approaches to substitute medical decision making in England and Germany. Based on the current ethico-legal discourse in both countries, three aspects of (...) substitute decision making will be highlighted: (1) Should there be a legally predefined order of relatives who serve as health care proxies? (2) What should be the respective roles and decisional powers of patient-appointed versus court-appointed substitute decision-makers? (3) Which criteria should be determined by law to guide substitute decision-makers? (shrink)

In his essay ‘Ethical Consistency’, Bernard Williams famously introduced the concept of a moral remainder, which points to the phenomenon of an in itself defensible decision that may nonetheless re...

Chance inevitably plays a role in law but it is not often that we consciously try to import an element of randomness into a legal process. Random Justice: On Lotteries and Legal Decision-Making explores the potential for the use of lotteries in social, and particularly legal, decision-making contexts. Utilizing a variety of disciplines and materials, Neil Duxbury considers in detail the history, advantages, and drawbacks of deciding issues of social significance by lot and (...) argues that the value of the lottery as a legal decision-making device has generally been underestimated. The very fact that there exists widespread resistance to the use of lotteries for legal decision-making purposes betrays a commonly held belief that legal processes are generally more important than are legal outcomes. Where, owing to the existence of indeterminacy, the process of reasoning is likely to be excessively protracted and the reasons provided strongly contestable, the most cost-efficient and impartial decision-making strategy may well be recourse to lot. Aversion to this strategy, while generally understandable, is not necessarily rational. Yet in law, as Professor Duxbury demonstrates, reason is generally valued more highly than is rationality. The lottery is often conceived to be a decision-making device that operates in isolation. Yet lotteries can frequently and profitably be incorporated into other decision-frameworks. The book concludes by controversially considering how lotteries might be so incorporated and also advances the thesis that it may sometimes be sensible to require that adjudication takes place in the shadow of a lottery. (shrink)

This article will explore some previously unrecognised legal and ethical issues associated with informal care-giving and criminal justice in the context of end of life decision-making. It was prompted by a recent case in Leeds Crown Court, which raises important issues for the people who care for their loved ones at home and for the criminal justice system more generally. Government figures estimate that over 5.2 million Britons are responsible for the care of relatives or loved ones. (...) In order to evaluate some of the ways in which they might find themselves exposed to unexpected criminal liability we have characterised this group as untrained carers who assume responsibility. (shrink)

Law 49/2018, of August 14, created the Portuguese legal regime of the assisted decision-making (capacity), thus eliminating the legal institutes of interdiction and disqualification, provided for in the Civil Code (CC). The aim of this legal regime was to embed a new vision of disability based on a model of rights, that grants people with disabilities an independent and autonomous life and reflects the acceptance of the International Convention on the Rights of Persons with Disabilities (...) (CRPD) guidelines. This paper intends to discuss the ‘new’ Portuguese legal system regarding the legal capacity of persons with disabilities and its role in valuing the expression of the real will of people with disabilities. (shrink)

U.S. researchers and scholars often point to two legal factors as significant obstacles to the inclusion of pregnant women in clinical research: the Department of Health and Human Services’ regulatory limitations specific to pregnant women's research participation and the fear of liability for potential harm to children born following a pregnant woman's research participation. This article offers a more nuanced view of the potential legal complexities that can impede research with pregnant women than has previously been reflected in (...) the literature. It reveals new insights into the role of legal professionals throughout the research pathway, from product conception to market, and it highlights a variety of legal factors influencing decision-making that may slow or halt research involving pregnant women. Our conclusion is that closing the evidence gap created by the underrepresentation and exclusion of pregnant women in research will require targeted attention to the role of legal professionals and the legal factors that influence their decisions. (shrink)

The present article reviews the state of public debate and legal provisions concerning end‐of‐life decision‐making in Italy and offers an evaluation of the moral and legal issues involved. The article further examines the content of a recent law concerning informed consent and advance treatment directives, the main court pronouncements that formed the basis for the law, and developments in the public debate and important jurisprudential acts subsequent to its approval. The moral and legal grounds for (...) a positive evaluation of this law, which attests that the patient may withhold or withdraw from life‐prolonging treatment, will be offered with reference to liberal approaches and particularly to the frameworks of care and virtue ethics; but reasons will also be offered in order to consider not only the latter but also broader range of end‐of‐life treatment decisions as morally apt options. In this light, we argue in favour of a further development of the Italian legislation to encompass forms of assisted suicide and active euthanasia. (shrink)

This paper addresses the black-box problem in artificial intelligence (AI), and the related problem of explainability of AI in the legal context. We argue, first, that the black box problem is, in fact, a superficial one as it results from an overlap of four different – albeit interconnected – issues: the opacity problem, the strangeness problem, the unpredictability problem, and the justification problem. Thus, we propose a framework for discussing both the black box problem and the explainability of AI. (...) We argue further that contrary to often defended claims the opacity issue is not a genuine problem. We also dismiss the justification problem. Further, we describe the tensions involved in the strangeness and unpredictability problems and suggest some ways to alleviate them. (shrink)

The United Nations Convention on the Rights of Persons with Disabilities urges and requires changes to how signatories discharge their duties to people with intellectual disabilities, in the direction of their greater recognition as legal persons with expanded decision-making rights. Australian jurisdictions are currently undertaking inquiries and pilot projects that explore how these imperatives should be implemented. One of the important changes advocated is to move from guardianship models to supported or assisted models of decision-making. (...) A driving force behind these developments is a strong allegiance to the social model of disability, in the formulation of the Convention, in inquiries and pilot projects, in implementation and in the related academic literature. Many of these instances suffer from confusing and misleading statements and conceptual misinterpretations of certain elements such as legal capacity, decision-making capacity, and support for decision-making. This paper analyses some of these confusions and their possible negative implications for supported decision-making instruments and those whose interests these instruments would serve, and advises a more incremental development of existing guardianship regimes. This provides a more realistic balance between neglecting the real limits of those with mental disabilities and thereby ignoring their identity and particularity, and continuing to bring them equally and fully into society. (shrink)

Informed decision-making (IDM) is considered an important ethical and legal requirement for population-based screening. Governments offering such screening have a duty to enable invitees to make informed decisions regarding participation. Various views exist on how to define and measure IDM in different screening programmes. In this paper we first address the question which components should be part of IDM in the context of cancer screening. Departing from two diverging interpretations of the value of autonomy—as a right and (...) as an ideal—we describe how this value is operationalized in the practice of informed consent in medicine and translate this to IDM in population-based cancer screening. Next, we specify components of IDM, which is voluntariness and the requirements of disclosure and understanding. We argue that whereas disclosure should contain all information considered relevant in order to enable authentic IDM, understanding of basic information is sufficient for a valid IDM. In the second part of the paper we apply the capability approach in order to argue for the responsibility of the government to warrant equal and real opportunities for invitees for IDM. We argue that additional conditions beyond mere provision of information are needed in order to do so. (shrink)

In recent years, a growing body of work has emerged in legal theory that focuses on the relationship between law and virtue. Part of this virtue jurisprudence literature deals with the role of virtue in adjudication and judicial decision-making, with leading authors claiming that virtue plays a central explanatory and normative role. This article engages with this literature on virtue in adjudication, and connects it with a contemporary phenomenon that poses a risk for courts and judges, namely (...) the politicisation of judiciaries. In particular, the question emerges whether virtue jurisprudence is able to provide practical guidance to judges and courts in order to help them avert such politicisation. I sketch the outlines of two contrasting answers to this question, by exploring two alternative approaches to understanding the politicisation of judiciaries from within a broadly virtue-ethical framework. On the first approach, it appears that judges may help prevent politicisation, by becoming more attentive to the tragic character of particular cases and by deciding as civic friends. However, on the other approach, which builds on Alasdair MacIntyre’s critique of modern moral discourse, politicisation appears to be intractable, and the practical recommendations following from the first perspective may even aggravate it. (shrink)

Formal models of argumentation have been investigated in several areas, from multi-agent systems and artificial intelligence (AI) to decision making, philosophy and law. In artificial intelligence, logic-based models have been the standard for the representation of argumentative reasoning. More recently, the standard logic-based models have been shown equivalent to standard connectionist models. This has created a new line of research where (i) neural networks can be used as a parallel computational model for argumentation and (ii) neural networks can (...) be used to combine argumentation, quantitative reasoning and statistical learning. At the same time, non-standard logic models of argumentation started to emerge. In this paper, we propose a connectionist cognitive model of argumentation that accounts for both standard and non-standard forms of argumentation. The model is shown to be an adequate framework for dealing with standard and non-standard argumentation, including joint-attacks, argument support, ordered attacks, disjunctive attacks, meta-level attacks, self-defeating attacks, argument accrual and uncertainty. We show that the neural cognitive approach offers an adequate way of modelling all of these different aspects of argumentation. We have applied the framework to the modelling of a public prosecution charging decision as part of a real legal decision making case study containing many of the above aspects of argumentation. The results show that the model can be a useful tool in the analysis of legal decision making, including the analysis of what-if questions and the analysis of alternative conclusions. The approach opens up two new perspectives in the short-term: the use of neural networks for computing prevailing arguments efficiently through the propagation in parallel of neuronal activations, and the use of the same networks to evolve the structure of the argumentation network through learning (e.g. to learn the strength of arguments from data). (shrink)

The paper is concerned with the introduction of computerized systems into public administration. As a basis for the assessment of current systems, a brief history of such systems is offered. Not only are “legal information systems” discussed, but the access to factual information is also dealt with. Three generations of systems in public administration are indicated: The first generation emphasized use of data bases and computers for calculation, as well as “computer‐oriented legislation.” The second generation lifted the forms, which (...) structure the case work, onto the computer screens. And the third generation is being born from the current efforts to design integrated work stations, using knowledge based methods. On this background, a discussion of impact on legal decision‐making is offered, emphasizing the replacement of vague by strict criteria, and the re‐use of pre‐collected factual information. A final note addresses the problem of reviewing or supervising such systems. (shrink)

The necessity of consent is widely justified on the basis of the principle of respect for autonomy. Also, it is widely believed that shared decision making (SDM) is the practical device to seek patients’ consent for medical treatment. In this essay, I argue that SDM, while necessary, is insufficient for consent; because, in the paradigm of evidence-based medicine, SDM is contingent upon other practices to identify appropriate treatments that form the subjects of SDM. Indeed, case law emphasises normative (...) decision-making practices that precede SDM. Furthermore, case law supplies a nuanced understanding of SDM, which includes not only exchange of information but also attention to human vulnerability that persists despite formal retention of decision-making capacity. In addition, the law marks out a space in which people with capacity are absolutely entitled to self-determination. Thus, a four-step framework of decision making can be induced from legal doctrine. This legal framework corresponds to a construct of respect for autonomy that draws upon feminist theory. Feminist scholars have objected to the focus on individuals in traditional theories of autonomy; instead, they insist that people have to be considered in the context of their social influences and relationships. Feminists separate out four ideas of autonomy, and these ideas can be used to construct a four-layered model of respect for autonomy, in which each layer corresponds sequentially to a step in the legal framework of decision making. This model of respect for autonomy provides both conceptual clarity and theoretically robust justification for doctors’ various obligations in decision-making practices for consent. (shrink)

There are two main ways of understanding the function of surrogate decision making in a legal context: the Best Interests Standard and the Substituted Judgment Standard. First, we will argue that the Best Interests Standard is difficult to apply to unconscious patients. Application is difficult regardless of whether they have ever been conscious. Second, we will argue that if we accept the least problematic explanation of how unconscious patients can have interests, we are also obliged to accept (...) that the Substituted Judgment Standard can be coherently applied to patients who have never been conscious at the same extent as the Best Interests Standard. We then argue that acknowledging this result is important in order to show patients respect. (shrink)

Unrepresented patients are some of the most vulnerable patients encountered in the healthcare system today. One of the challenges associated with healthcare for unrepresented patients is the lack of a standardized legal approach to decision making for this highly vulnerable population. Current statutory approaches vary widely without best practices or consensus guidelines. In 2016, Colorado passed a medical proxy law that established a process for the appointment of an independent physician to serve as a temporary proxy (...) class='Hi'>decision maker for an unrepresented patient. Although this approach helps to identify a decision maker when no proxy is available, the appropriate standards for decision making remain uncertain. A peer-to-peer session at the Clinical Ethics Unconference in 2022 approached this conundrum with a focus on the best interests standard and the appropriate use of patients’ context in decision making. (shrink)

Families frequently act as substitute decisionmakers for their older members who suffer from diminished mental capacity to make and express their own medical choices. Substitute decisionmaking takes on particular ethical and legal urgency within the nursing home environment, especially when choices concern potential medical treatment near the end of the nursing home resident's life. This article examines current legal mechanisms in the United States that enable a family to make substitute medical decisions, the ethical underpinnings of those mechanisms, (...) and specific ethical and legal considerations implicated by their application to the nursing home setting. The article offers advice to nursing home professionals, including physicians, in working with families as substitute decisionmakers. (shrink)

Discussion of supported decision making has been dominated by legal scholars, philosophers, and advocates for persons with disabilities. Peterson et al.’s primary contribution is introducing...

IntroductionExtended decision -making through the use of proxy decision -makers has been enshrined in a range of International Codes, Professional Guidance and Statute,For example, the UK Mental Capacity Act section 9.1; The General Medical Council ; the US National Guardianship Association ; Nuffield Council on Bioethics ; CIOMS-WHO section 6. Court cases such as Re Quinlan in the US have also contributed to establishing the groundings for the legal status of the proxy, albeit in terms of (...) who might be suitable as a proxy in cases where there was no clear appointment of them by a still competent individual. and is now widely seen as a useful means through which we can exercise control over decisions that affect our lives when we have lost capacity to make these decisions for ourselves.I will here limit myself to discussion of proxy consent for adults appointed prior to the loss of competence by the person they are acting as proxy for. The issue of p. (shrink)

Decision-making capacity is a vital concept in law, ethics, and clinical practice. Two legal cases where capacity literally had life and death significance are NHS Trust v Ms T [2004] and Kings College Hospital v C [2015]. These cases share another feature: unusual beliefs. This essay will critically assess the concept of capacity, particularly in relation to the unusual beliefs in these cases. Firstly, the interface between capacity and unusual beliefs will be examined. This will show that (...) the “using and weighing of information” is the pivotal element in assessment. Next, this essay will explore the relationship between capacity assessment and a decision’s “rationality.” Then, in light of these findings, the essay will appraise the judgments in NHS v T and Kings v C, and consider these judgments’ implications. More broadly, this essay asks: Does capacity assessment examine only the decision-making process, or is it also influenced by a decision’s rationality? If influenced by rationality, capacity assessment has the potential to become “a search and disable policy aimed at those who are differently orientated in the human life-world”. In contentious cases like these, this potential deserves attention. (shrink)

The computer revolution has had an enormous effect on all aspects of the practice of medicine, yet little thought has been given to the role of social media in identifying treatment choices for incompetent patients. We are currently living in the ?Internet age? and many people have integrated social media into all aspects of their lives. As use becomes more prevalent, and as users age, social media are more likely to be viewed as a source of information regarding medical care (...) preferences. This article explores the ethical and legal issues raised by the use of social media in surrogate decision making. (shrink)

Marshall and colleagues (2024) contribute to the literature on autonomy and decision-making capacity by focusing on the case of individuals with opioid use disorder who refuse to remain in the hosp...

During the COVID-19 pandemic, global healthcare systems faced unprecedented challenges, with a lack of resources and suboptimal patient care emerging as primary concerns. Our research, using a comprehensive 24-item electronic questionnaire, “Reflections on the Provision of Healthcare during the COVID-19 Pandemic,” delved into the experiences of 938 physicians across the Czech Republic. Over fifty per cent observed a “lower standard of care” compared to pre-pandemic levels. A division arose among physicians regarding a decision’s medical, ethical, or legal basis, (...) with a notable gender disparity: male doctors leaned towards medical perspectives, whereas females accented the ethical perspective. Decision-making concerning health care limitations required agreement among the physicians on duty, interdisciplinary teams, or shift supervisors. Physicians reported varying degrees of patient or family participation in health care decisions. Variables such as age, pre-existing health conditions, and life expectancy influenced care decisions. Surprisingly, half of the physicians faced refusals of patients’ transportation to better-equipped facilities due to resource constraints. One-third of physicians never discuss the decision about care limitation and other options with patients or their families. As a result, almost fifty per cent of the physicians rarely or never imparted information about care limitations to patients. The survey shed light on the profound ethical dilemmas hospital physicians face across different types of healthcare facilities during the pandemic. It uncovered the need for open dialogue and scholarly debate on resource allocation and strengthening the role of patients and their families in care decisions in future healthcare crises. (shrink)

The present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe’s agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decision-making. Mouffe’s concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for perceiving (...) all judicial decisions as having a double nature—juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of on-going collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a ‘relative sovereignty’, being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not ‘apply itself’ on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from theprima facieinterpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe’s theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies. (shrink)

This essay explores the preferences, anticipations and expectations of the elderly regarding the role of family members in making health care decisions for them should they become decisionally incapacitated. Findings are presented from a series of in-depth interviews of men and women aged 67–91 years. Following a discussion of the uncertain legal status of familial surrogate decision-making, we argue that the family unit's autonomy is sufficient to justify the elderly's preferred reliance on their own family. Further, (...) we suggest that social and legal policy changes should facilitate, rather than impede, familial decision-making. (shrink)

The rapidly increasing role of automation throughout the economy, culture and our personal lives has generated a large literature on the risks of algorithmic decision-making, particularly in high-stakes legal settings. Algorithmic tools are charged with bias, shrouded in secrecy, and frequently difficult to interpret. However, these criticisms have tended to focus on particular implementations, specific predictive techniques, and the idiosyncrasies of the American legal-regulatory regime. They do not address the more fundamental unease about the prospect that (...) we might one day replace judges with algorithms, no matter how fair, transparent, and intelligible they become. The aim of this paper is to propose an account of the source of that unease, and to evaluate its plausibility. I trace foundational unease with algorithmic decision-making in the law to the powerful intuition that there is a basic moral and legal difference between showing that something is true of many people just like you and showing that it is true of you. Human judgment attends to the exception; automation insists on blindly applying the rule. I show how this intuitive thought is connected to both epistemological arguments about the value of statistical evidence, as well as to court-centered conceptions of the rule of law. Unease with algorithmic decision-making in the law thus draws on an intuitive principle that underpins a disparate range of views in legal philosophy. This suggests the principle is deeply ingrained. Nonetheless, I argue that the powerful intuition is not as decisive as it may seem, and indeed runs into significant epistemological and normative challenges. At an epistemological level, I show how concerns about statistical evidence's ability to track the truth can be resolved by adopting a probabilistic, rather than modal, conception of truth-tracking. At a normative level, commitment to highly individualized decision-making co-exists with equally ingrained and competing principles, such as consistent application of law. This suggests that the “rule of law” may not identify a discrete set of institutional arrangements, as proponents of a court-centric conception would have it, but rather a more loosely defined set of values that could potentially be operationalized in multiple ways, including through some level of algorithmic adjudication. Although the prospect of replacing judges with algorithms is indeed unsettling, it does not necessarily entail unreasonable verdicts or an attack on the rule of law. (shrink)

This “Legal Briefing” column covers recent legal developments involving patient decision aids. This topic has been the subject of recent articles in JCE. It is included in the 2010 Patient Protection and Affordable Care Act. And it has received significant attention in the biomedical literature, including a new book, a thematic issue of Health Affairs, and a recent article in the New England Journal of Medicine. Moreover, physicians and health systems across the United States are increasingly integrating (...) decision aids into their clinical practice. Both federal and state laws play a significant role in promoting this expanded use. On the other hand, concerns about liability could stymie development and implementation. We categorize legal developments concerning patient decision aids into the following five sections:1. Development of decision aids2. Effectiveness of decision aids3. Federal regulation of decision aids4. State regulation of decision aids5. Legal concerns regarding decision aids. (shrink)

Recent legal developments challenge how valid the concept of mental capacity is in determining whether individuals with impairments can make decisions about their care and treatment. Kong defends a concept of mental capacity but argues that such assessments must consider how relationships and dialogue can enable or disable the decision-making abilities of these individuals. This is thoroughly investigated using an interdisciplinary approach that combines philosophy and legal analysis of the law in England and Wales, the European (...) Court of Human Rights, and the United Nations Convention on the Rights of Persons with Disabilities. By exploring key concepts underlying mental capacity, the investigation concludes that both primary relationships and capacity assessments themselves must display key competencies to ensure that autonomy skills are promoted and encouraged. This ultimately provides scope for justifiable interventions into disabling relationships and articulates the dialogical practices that help better situate, interpret, and understand the choices and actions of individuals with impairments. (shrink)

In the UK, current policies and services for people with mental disorders, including those with intellectual disabilities (ID), presume that these men and women can, do, and should, make decisions for themselves. The new Mental Capacity Act (England and Wales) 2005 (MCA) sets this presumption into statute, and codifies how decisions relating to health and welfare should be made for those adults judged unable to make one or more such decisions autonomously. The MCA uses a procedural checklist to guide this (...) process of substitute decision-making. The personal experiences of providing direct support to seven men and women with ID living in residential care, however, showed that substitute decision-making took two forms, depending on the type of decision to be made. The first process, ‘strategic substitute decision-making’, paralleled the MCA’s legal and ethical framework, whilst the second process, ‘relational substitute decision-making’, was markedly different from these statutory procedures. In this setting, ‘relational substitute decision-making’ underpinned everyday personal and social interventions connected with residents’ daily living, and was situated within a framework of interpersonal and interdependent care relationships. The implications of these findings for residential services and the implementation of the MCA are discussed. (shrink)

ABSTRACTThis report on end‐of‐life decision‐making in Canada was produced by an international expert panel and commissioned by the Royal Society of Canada. It consists of five chapters.Chapter 1 reviews what is known about end‐of‐life care and opinions about assisted dying in Canada.Chapter 2 reviews the legal status quo in Canada with regard to various forms of assisted death.Chapter 3 reviews ethical issues pertaining to assisted death. The analysis is grounded in core values central to Canada's constitutional order.Chapter (...) 4 reviews the experiences had in a number of jurisdictions that have decriminalized or recently reviewed assisted dying in some shape or form.Chapter 5 provides recommendations with regard to the provision of palliative care in Canada, as well as recommendations for reform with respect to the various forms of assisted death covered in this document. (shrink)

The central claim of this paper is that American states’ use of so-called “triggering conditions” to regulate surrogate decision-making authority in end-of-life care leaves unresolved a number of important ethical and legal considerations regarding the scope of that authority. The paper frames the issue with a case set in a jurisdiction in which surrogate authority to withdraw life-sustaining treatment is triggered by two specific clinical conditions. The case presents a quandary insofar as the clinical facts do not (...) satisfy the triggering conditions, and yet both the appropriate surrogates and the care team agree that withdrawal of life-sustaining treatment is in the best interest of the patient. The paper surveys applicable law across the 50 states and weighs the arguments for and against the inclusion of such triggering conditions in relevant legal regimes. The paper concludes by assessing the various legal and policy options states have for regulating surrogate decision-making authority in light of the moral considerations, and notes the possibility for conflict within ethics teams arising from the potential tension between prudence, risk-aversion, and moral obligation. (shrink)