Bioethics and Law in a Nutshell
Authors:
Johnson, Sandra H. / Schwartz, Robert L. / Gatter, Robert / Pendo, Elizabeth
Edition:
2nd
Copyright Date:
2016
15 chapters
have results for health
Chapter 10. Distributive Justice and Healthcare Reform 42 results (showing 5 best matches)
- Comprehensive health care reform brings issues of distributive justice to the forefront. The goals of the federal Patient Protection and Affordable Care Act, 42 U.S.C. § 18001 (2010) (ACA), include expanding access to insurance coverage, improving health care quality, improving the health care delivery system, controlling health care costs, and eliminating health inequities. The vigorous discussion and debate around health care reform highlight the values and principles underlying the allocation of health care resources and costs within the United States health care system.
- Access to health insurance and access to health care are distinct. An individual can have access to care without health insurance if he or she is able to pay the cost of that care. Similarly, an individual can have access to health insurance but not access to health care if the individual is not able to pay his or her share of the cost, because of barriers or discrimination, or because the services are not available in his or her geographic region. However, health insurance affects when and if people get necessary health care, the outcomes or results of health care, and overall health.
- The United States is the only modern industrial county that does not have some form of universal access to health care. Because of the high cost of medical care in the United States, most individuals rely on private health insurance to pay for needed health care services. It is difficult for an individual to predict whether he or she will experience an injury or illness that requires expensive care. Health insurance transfers the risk of high health care costs from the individual to the insurer in exchange for premium or payment, in effect spreading the risk among all persons who are insured. The insurer manages the risk by pooling large numbers of insureds. Essentially, health insurance transfers costs from insureds with high health care costs, who are responsible for most health care costs, to insureds with low health care costs if everyone pays the same premium.
- Discriminatory barriers to access implicate the principle of distributive justice because they impede rather than promote the just allocation of health care. There is also a growing literature on the health effects of discrimination on individuals and communities. The importance of equal and non-discriminatory access is reflected in the number of federal laws prohibiting discrimination in health insurance or health care. Although states have been less active than the federal government in this area, many states also have laws prohibiting discrimination in health care, health insurance, or both, on various other bases, including health status.
- A health disparity or health inequity is a population-level health difference that is linked to a history of social, economic, or environmental disadvantages. The term health disparity generally refers to differences in health status or health outcomes, such as a higher burden of illness, injury or mortality. An example is a finding that people with cognitive disabilities are five times more likely to have diabetes than the general population. The more specific term health care disparity sometimes is used to refer to differences in access to health care and differences in the quality of care received. An example of a health care disparity is the finding in a 1993 study examining the treatment of pain resulting from fractures of the long bones of the arm or leg. The study found that Hispanics with these serious fractures were twice as likely as similar, non-Hispanic whites to receive no pain medication in the emergency department.
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Chapter 9. Public Health and Bioethics 62 results (showing 5 best matches)
- “Public health” has several meanings. The World Health Organization defines it generally as “all organized measures … to prevent disease, promote health and prolong life among the population as a whole.” Thus, most fundamentally, public health refers to a mixture of interventions designed to improve “population health.” In this sense, the “public” in public health refers to a population of people.
- The population health focus of public health challenges bioethics and its traditional emphasis on the principle of respecting individual autonomy. Public health demands that community health have moral value against which claims of individual autonomy must be justified. This does not require a separate “ethics of public health.” Instead, it requires existing ethical frameworks to better account for population health in relation to individual liberty.
- This focus on population health is the key distinction between public health work and clinical medicine, which addresses the health of individuals. Yet, additional important distinctions between public health and medicine exist. For example, most health care professionals and institutions in the U.S. are private actors. Meanwhile, public health is practiced primarily by federal, state and local governments. So, in this sense, the “public” in public health identifies that its work is undertaken primarily by the public sector.
- Public health emphasizes the prevention of ill-health, and this further distinguishes it from medicine, which is chiefly concerned with treating ill-health. To prevent disease and injury at the population level, public health aims at creating the conditions necessary for population health. Thus, public health workers survey the populations over which they have jurisdiction, and epidemiologists use this data to identify the incidence and causes of various forms of ill-health. Agencies use this information to implement interventions designed to lower rates of disease and injury.
- This effort has been labeled “new public health” because it expands the work of public health agencies from traditional communicable disease control to include all causes of ill-health in a population. New public health is also controversial because it seeks to improve population health by changing individual behaviors, which conflicts with deeply entrenched notions of individual autonomy.
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Chapter 5. Decisions Regarding Life-Sustaining Treatment 53 results (showing 5 best matches)
- Some states with statutes modeled on the Uniform Health-Care Decisions Act also have statutory provisions that provide that physicians need not provide futile care. That Act provides that “[a] health-care provider or institution may decline to comply with an individual instruction or health-care decision that requires medically ineffective health care or health care contrary to generally accepted health-care standards applicable to the health-care provider or institution.” Really, the Texas statute differs from the Uniform Act only in providing a clear procedure for resolving these issues and an authoritative and conclusive endpoint for disputes. A few states have adopted statutes that prohibit physicians from refusing to honor a patient’s request to continue life-sustaining treatment.
- If the principle of substituted judgment cannot be applied to make a health care decision for an incompetent patient, the decision maker must apply the best interest principle as a back-up. Under the best interest principle, the decision maker must make the health care choice that is best for the patient. But what does this mean? Does it mean to do what the surrogate decision maker would do under the same circumstances? What most people would do under the same circumstances?
- Legislatures also created other forms of advance directives, like durable powers of attorney for health care, which allowed competent patients to appoint particular people to make decisions on their behalf should they become incompetent. Over the last twenty years most states have adopted more general advance directive statutes, many based on the Uniform Health Care Decisions Act, which combine the basic elements of living will legislation and durable power legislation. These newer statutes also include general provisions describing the standards to be applied in health care decision making for incompetent patients, and also family consent provisions, which provide a default priority list of those who may make health care decisions in the absence of any advance directive.
- The Uniform Health-Care Decisions Act (UHCDA), which has been widely adopted in varying forms, substantially alters the form and utility of living wills and durable powers, and it provides a method of making health care decisions for incompetent patients who do not have advance directives of any sort.
- By custom, health care institutions and health care workers caring for patients rely on orders given by the health care professional, usually a physician, responsible for the patient’s treatment. Recognizing this custom, some patient advocates argue that the most practical way to effectively protect a patient’s interests at the end of life is to incorporate the patient’s health care decisions into a physician’s order. One way of doing this is to incorporate those decisions into a Physician Order for Life Sustaining Treatment (POLST). POLST forms (called “scope of treatment” orders in some states, and Medical Orders—“MOLST”—in New York) may include information about a patient’s decisions with regard to resuscitation orders, the extent of appropriate medical intervention, the use of antibiotics and other pharmaceuticals, the provision of nutrition and hydration, the desired place of treatment ...), the identity of the authorized health care decision maker, and other relevant...
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Chapter 2. Human Reproduction 21 results (showing 5 best matches)
- Under the Affordable Care Act, most group health plans and health insurance issuers must provide preventive health care services to their enrollees and insureds without requiring any copay, deductible, or other form of cost-sharing. In 2010, the Departments of Health and Human Services, Labor and Treasury (each of which had jurisdiction over some aspects of this requirement) issued an interim final rule that adopted the Health Resources and Services Administration (HRSA) guidelines for what services would be included in the required preventive health care benefit. The HRSA guidelines are based on recommendations made by the independent Institute of Medicine and hold that such preventive services include all forms of contraception that are approved by the Food and Drug Administration. Thus, most health plans and health insurance policies would be required to cover hormonal methods of contraception (i.e., birth control pills and post-intercourse emergency contraception like Plan B and...
- Whole Woman’s Health
- Whole Woman’s Health
- The proposal provided no relief to for-profit corporations, but it provided that if the religiously affiliated organization bought health coverage for its employees (or students), the coverage need not include the objectionable contraceptive services. Instead, the employer (or the college providing student health coverage) would be required to tell their health insurance carrier, or their administrator in the case of a self-funded plan, that they were choosing to opt out of providing that coverage. Each religious organization using this opt-out procedure would be required to submit written notice that (1) it is a religious organization, (2) it will not act as the plan administrator or the claims administrator with regard to contraceptive services, and (3) it will not contribute to the funding of such services. Those services would then have to be provided independently by the insurance provider or plan administrator, and they would be paid for by the insurer through actuarial...
- The legal approach to the regulation of gestational agreements (and to assisted reproduction more generally) depends on the legal perspective one brings to the enterprise. Family lawyers tend to view the process as analogous to adoption, and they ask how any proposed regulation ought to be different from the regulation that governs adoption. The 2002 version of the Uniform Parentage Act, which requires a home study before a surrogacy arrangement is permitted and places a great deal of authority in the judge, is based on this adoption approach to ART. Health lawyers are more likely to see the process as the provision of a form of health care, and they ask how regulation designed to assure the quality of our health care system can best be applied to help “patients” in this area achieve their goal—usually, parentage of a child. Informed consent requirements—everything from providing infertility center success rates to the potential physical consequences of being a surrogate—seem to...
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Chapter 1. Introduction to Ethics 25 results (showing 5 best matches)
- Some argue that health care professionals and health care organizations surrender some personal liberty when they choose to enter the health care field and should be bound to provide all care allowed by law and chosen by patients as needed. If they are not willing to provide that care, they should leave the practice or at least confine their field of work. Others argue that health care professionals are themselves moral beings who may never be forced to compromise their moral principles or subject their own moral agency to the will of another. If the ethics and character of the health professions are compromised, they argue, the power of the professions becomes dangerous. Most public policy responses to these claims of conscience seek to balance the claims of patients and health care professionals.
- The field of bioethics thus far has focused primarily on medical treatment decisions, creating what is essentially an ethics of the bedside, even though principlism has long recognized the principle of distributive justice. The classic model for discussion of justice in the distribution of scarce or restricted supply of health care resources is the identification of recipients for available human organs for transplantation where the demand for organs far outstrips supply. See Chapter 7. More systemically, justice concerns arise in the context of health care disparities and barriers to medical care for racial and ethnic minorities, people in rural areas, and disabled persons. Issues arising in health care reform have attracted increased attention, spotlighting norms for the distribution of health care resources. See Chapter 10.
- The general theories of ethics discussed above may be employed in these questions. A utilitarian approach, for example, would assess the morality of the current distribution of health care services by examining its consequences on society as a whole. A deontological approach may focus on analyzing where the moral duty lies and how respect for the moral equality of persons would be affected by particular distribution systems. Analysis of the moral character of distribution of health care resources typically begins with addressing one issue: whether health care is distinguishable from other goods and services that are governed by market transactions.
- Others argue that health care is a consumer good like any other, and lack of health care is the result of personal choices and should remain so. Libertarians, for example, may support a market approach to distribution because redistributing wealth is unjust to those from whom it is taken. Law and economics, a form of consequentialism, may argue that the market is the appropriate mechanism for distributing health care. Providing health care as a matter of right, according to this argument, would create disincentives for self-support,
- Extending conscience protections to health care facilities may attract support in response to the contribution made by these facilities, but it may deny needed treatment to patients if there are no other facilities that provide easy and timely access to the care. Some argue as well that allowing facilities to exclude citizens requiring care allowed in law is inconsistent with their acceptance of extensive public funds through Medicare and Medicaid payments, support for research, support for residency training, and exemption from income and property taxes. Currently, conscience legislation permits health care facilities to refuse to provide particular services under certain narrow circumstances only. This remains a contentious issue. In fact, conflicts over claims of religious liberty relating to medical care have broadened and intensified over requirements that health insurance plans cover contraceptive health care. These conflicts reach beyond the relationship of health care...
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Title Page 3 results
Preface 1 result
- For almost thirty years, Sandra Johnson and Robert Schwartz have been co-authors, with Barry Furrow, Tim Greaney, and Tim Jost, of Health Law: Cases, Materials and Problems, which is now in its Seventh Edition. The Health Law casebook has always included substantial coverage of bioethics issues, and the bioethics chapters have also been published, with additional material, as Bioethics: Health Care Law and Ethics. As those familiar with the casebooks will recognize, a few parts of this Nutshell are taken directly from one or the other of those casebooks. This Nutshell grows out of our experiences in writing these casebooks and in teaching our students over the years, and the new edition is substantially enriched by the addition of two future Health Law casebook authors, Robert Gatter and Elizabeth Pendo.
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Chapter 3. Genetics 11 results (showing 5 best matches)
- State statutes prohibiting genetic discrimination in insurance generally distinguish among different forms of insurance. For example, it is quite common for legislation to prohibit discrimination in health insurance but to allow the use of genetic information in life insurance, credit insurance, or other insurance policies. Most statutes prohibiting the use of genetic information in health insurance provide that the insurer may not refuse to issue a policy and may not use such information in setting premiums or benefits. The federal statute GINA prohibits insurers from excluding coverage for a preexisting condition solely because of genetic information.
- These limitations and uncertainties may be exacerbated when an individual obtains genetic testing results outside of a traditional physician-patient relationship, for example through the use of direct-to-consumer (DTC) health-related genetic testing services. Questions about accuracy, interpretation, and adequacy of informed consent with respect to DTC companies’ use of the results continue to be put forward.
- Calling something a genetic anomaly, a genetic condition, a genetic defect, a genetic trait, or a genetic disease incorporates notions of health, illness, and normalcy in the human genotype (the
- Many states and the federal government have enacted legislation to regulate the use of genetic information. The federal Genetic Information Nondiscrimination Act (GINA), 42 U.S.C. § 2000ff (2008), for example, prohibits an employer or health insurer from acquiring or using an individual’s genetic information, with some exceptions.
- The issue of confidentiality of medical information involves both the duty to keep information confidential and the rare obligation to disclose information. Statutes and common law doctrines applying to medical information generally, such as the federal Health Insurance Portability and Accountability Act (HIPAA), apply to genetic information. In addition, many states have enacted genetics-specific confidentiality and privacy statutes.
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Chapter 8. Regulation of Research with Human Subjects 8 results (showing 5 best matches)
- Finally, the Physician Payment Sunshine Act (42 U.S.C. § 1320a–7h) requires manufacturers of drugs, devices, biologics, medical supplies, and other health care items to submit to HHS a list of health care providers to whom they have made financial transfers or payments. Covered payments include payments and grants for research. There is a delay in reporting built in for research to protect innovations under development.
- Finally, the federal regulations provide a process for federal agency review and approval of research protocols that do not meet federal standards for research with children. While an IRB cannot approve such studies, an agency expert panel may do so if the study addresses a serious problem that affects the health or welfare of children.
- Most countries have established standards and procedures to govern medical research conducted within their borders. The Declaration of Helsinki, Ethical Principles for Medical Research Involving Human Subjects, first promulgated in 1964 by the World Health Organization and amended several times since then, has had a substantial influence on international legal standards.
- The Office of Inspector General of HHS also enforces the federal regulations on research through its authority to investigate and prosecute fraud and false claims. Criminal prosecution under state law is also available in rare circumstances. Research studies are also subject to HIPAA (Health Insurance Portability and Accountability Act) requirements concerning privacy and security.
- An area of risk that has drawn attention over the past several years is the possibility that a study might produce findings for an individual research subject that could be critical to their health, such as a finding of genetic conditions of which the subject otherwise would be unaware. In some cases, the results will be anticipated as an intended product or anticipated by-product of the research process. In others, the findings may be an unanticipated incidental to the work of the protocol. The 2015 NPRM proposed regulations do not require the return of incidental results but do address how informed consent should be handled when there are anticipated or unanticipated results.
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Outline 21 results (showing 5 best matches)
Chapter 6. Aid in Dying 6 results (showing 5 best matches)
- Those who choose aid in dying tend to be very well educated (just under half have had bachelor’s degrees), and the burden of the statute did not fall on people of color (97% were White) or the poor (98% had health coverage of some sort). There is no evidence that those who were disabled prior to their final illness were disproportionally represented among those who were prescribed a lethal dose.
- Dutch health care system which assures that each person has adequate health care and a long-term relationship with their primary care physician.
- All states have now repealed statutes that made suicide itself illegal. Although those statutes never resulted in the prosecution of a successful suicide, of course, they had often been invoked to prosecute those who unsuccessfully attempted suicide and who had thus committed the inchoate crime of attempted suicide. In any case, is the decision by a competent terminally ill person to end his life the type of “suicide” that criminal law and public health efforts intend to prevent, deter, or punish?
- With the issue neatly placed in the political arena, there has ensued a vigorous policy debate over the propriety of aid in dying. Libertarian and health care consumer advocacy groups, along with liberal religious groups and some groups designed to advocate for the elderly, supported legislation that would permit aid in dying, primarily because it would give patients greater choice in health care.
- Switzerland also now permits assisted death, and, unlike the Netherlands, Belgium, Oregon, and Washington, the assistance need not be provided by a physician or any other health care provider. Assisting suicide, whether performed by a doctor or a lay person, is criminal in Switzerland only if done for “selfish” rather than “altruistic” motives. It is
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Chapter 7. Organ Transplantation 7 results (showing 5 best matches)
- Other ethical and legal issues arise when the donor is not competent to consent to organ retrieval. The judicial opinions on the matter of organ retrieval from incompetent patients tend to adopt the decision-making framework used for surrogate health care decisions generally. See Chapter 5.
- pay (e.g. private insurance v. Medicare or Medicaid) is known to influence listing. Two academic health centers settled, without admitting guilt, claims by the federal government that they manipulated the reports of their patients’ health status in order to increase their volume of transplants. UNOS policies and federal regulations have increased the specificity of standards for listing in recent times; but the practice remains somewhat informal and variable. Some claim that the informality, variability, and lack of oversight disadvantage women and minority candidates for transplantation.
- The UAGA provides a vehicle for the donation of organs through the execution of a “document of gift” by an individual prior to death. The document need not follow any particular formalities. Statements in living wills, durable powers of attorney, testamentary wills, donor cards, enrollment in a state-sponsored website, and notation on a driver’s license are all acceptable. The UAGA also provides for the execution of pre-mortem document of gift by a legally incompetent individual’s guardian or designated health care agent.
- The National Organ Transplant Act of 1984 (NOTA) requires the federal Department of Health
- ...of a pre-mortem document of gift by the decedent, the UAGA provides that individuals other than the decedent may authorize the removal of the decedent’s organs. The UAGA lists certain classes of individuals who may do so. The first listed category is the agent appointed by the decedent, as in a durable power of attorney for health care. See Section III.B in Chapter 5. Thereafter, family members are listed in order of priority: first the spouse, then adult children, parents, adult siblings, adult grandchildren, and grandparents. If any member of a prior class is reasonably available to make the donation decision, the next class has no authority. The 2006 version added “an adult who exhibited special care and concern for the decedent” to the list of those who could authorize an anatomical gift, but only if prior classes (i.e., the patient-designated agent or listed family members) are unavailable. Of course, states may modify the list by addition or subtraction or by...
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Index 22 results (showing 5 best matches)
Table of Cases 3 results
- There has been some concern expressed as well that interventions to preserve the health of the organs may hasten the death of the donors. Some individual health care providers may object to participating in DCDD because they worry about the hasty removal of organs, and so claims of protection for conscience may arise. See Section IV.B in Chapter 1 and Section I.C in Chapter 2. Despite the ambiguity in the application of the legal standard for the determination of death and ethical concerns with DCDD, it has become a common
- by the irreversible cessation of total brain function is sometimes called “brain death”—as if the patient is not completely dead. Although according to law, the individual is dead, news articles and health professionals frequently and incorrectly refer to a “brain dead” individual being kept “alive,” for example to extend a pregnancy.
- Hospitals sometimes encounter surviving family members who reject the application of the whole brain death standard for their kin. Although the law is clear that doctors and hospitals have the legal authority to declare the individual dead without the consent of the family, some hospitals routinely respond to the family’s concern at least temporarily by delaying the declaration of death for some time. Ultimately, however, most hospitals will discontinue ventilator support in these cases over the family’s objection unless another health care provider is willing to assume custody and care of the “patient” outside of the hospital. Hospitals typically rely on institutional policies regarding medically futile care in handling these cases. See Chapter 5.
- At least two states have established legal rights for individuals who reject the brain death standard. New Jersey by statute provides that the neurological criteria should not be used to determine death where the doctor “has reason to believe” that the use of the brain death criteria would violate the patient’s “personal religious beliefs.” New York State Department of Health regulations require that hospitals provide reasonable accommodation for those with “religious or moral objections” to the use of the neurological criteria for death. The regulations specify, however, that the hospitals need not accommodate objections based “solely on the psychological denial that death has occurred or on an alleged inadequacy of the brain death determination.”
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- Publication Date: September 23rd, 2016
- ISBN: 9781634604703
- Subject: Health Law
- Series: Nutshells
- Type: Overviews
- Description: This book provides a concise analysis of areas in which the law has addressed issues in bioethics. Topics include assisted reproductive techniques and family-making, limitations on reproduction (including abortion, contraception and sterilization), the role of ethical and religious beliefs of health care professionals, the definition of death, end-of-life decision-making (including physician assisted death), genetics, research involving human subjects (including issues related to conflicts of interest), stem cell research, organ transplantation, and other emerging topics. The book provides an excellent introduction to the process of ethics decision-making as well as useful support for students.
