The German law regulating medical treatment of the genitalia in minors

This article presents the new German law on advance directives from 1 September 2009. The history of the parliamentary process of this law is described, the present regulations are explained,...

Dans cet article, publie pour la premiere fois dans le Quarterly Vol. 12, No 2, 1934, l'A. presente l'approche americaine de l'assurance sante, qu'il compare a l'approche europeenne, dont une premiere partie retrace les grandes etapes historiques (au Royaume-Uni et en Allemagne). L'arriere-plan historique de l'assurance maladie, telle qu'elle s'est developpee en Europe, est economique, son premier objectif ayant ete la protection du revenu, le remboursement des soins medicaux y etant un objectif second. Si l'experience europeenne est pleine d'enseignements, le cas des Etats-Unis necessite une approche differente, du fait que les couts des soins medicaux mettent desormais en jeu des sommes plus importantes et affectent bien plus de gens que ne le fait la perte de salaire due a la maladie, et aussi du fait que la provision d'un soin medical adequat, curatif et preventif, implique des possibilites plus importantes que dans l'ancien temps, pour soulager la souffrance, promouvoir la sante, augmenter l'efficacite economique. L'A. conclut ainsi son article par une serie de recommandations pour un systeme de sante plus stable, dans lequel les soins medicaux seraient pris en charge par l'assurance maladie, soutenue par l'impot.

This paper contains an introduction, four separate parts and the conclusion. In the introduction was first exposed patients' rights in Germany before their codification, and then we talk about general characteristics and objectives of the political and legal rights of patients. The first part of paper is dedicated to the treatment contract and his place in the German Civil Code, that set by the legislature. This is about typical contractual obligations of its parties and special responsibilities of doctors to patients. The second part relates to the peculiar duty of doctors to inform patients about their own and others' mistakes in treatment. The third part includes responsibility for mistakes in patient care. Starting from the premise that the mistake is a negative deviation from the medical standard, the author talks about the concept of medical standards and the principle of freedom to choose the method of treatment, and what treatment means. The fourth section deals with the burden of proof for liability for negligent medical treatment and informing the patient. There is, in fact, a word of facilitating evidence in favor of the patient, as it has found and developed jurisprudence, and now these benefits translated into the legal standard which is particularly noticeable feature of the German health medical law. The author concludes that the German law on patients' rights has a special meaning for patients, doctors and lawyers in Serbia. The special attention is drawn to its provisions regarding the treatment contract, which the legislator settled in the Civil Code. They encourage reflection on whether the contract of treatment has the place in the future Serbian Civil Code which is preparations are underway. In addition, special attention is given to the provisions of the new German law which obliges the doctors to inform the patient of his and someone else's mistakes in treatment, as well as provisions on the burden of proof in lawsuits against doctors. The author states that Germany is the only one, so far, the country in Europe that legislators in the form of these rules means to maintain a balance of interests between doctors and patients. For those who are not ready to go down that path, this could be at least an ideal to be strived for.

A lot of intersexual children undergo gender reassignment surgery to achieve clear classification as being either male or female. In this work, the current medical practice in this regard is examined in terms of its compatibility with German law. The study focuses on informed consent regarding such medical treatment. Furthermore, a comparative analysis of the legal systems in Germany, Austria and Switzerland aims to analyse whether certain regulations concerning the different forms of consent in this respect should be incorporated into the German legal system. All in all, the work pursues a legal policy objective, and develops and evaluates different approaches to improving the situation of intersexual individuals beyond surgical treatment.

In 2007, a legal reform introduced formal health economic evaluation for selected reimbursement decisions by the statutory health insurance in Germany. The methods of evaluation are currently under discussion. This study assesses whether an approach based on decision-analytic cost per QALY modelling fits with the legal requirements set by Book Five of the German Social Code (SGB V). It is based on a review of legal documents and the relevant literature. Key specifications for economic evaluation in Germany are the differential interpretations of "benefit" in the relevant legislation as well as the requirement that the methods follow "international standards of evidence-based medicine and health economics" ( section sign section sign 35b, 139a SGB V). In German reimbursement decision practice, new interventions have undergone an assessment of (1) benefit, (2) necessity and (3) cost-effectiveness (prior to the legal reform only exclusion of dominated alternatives). While the establishment of benefit in step (1) is preferably based on clinical trials in current practice, also two different interpretations of "benefit" in steps (1) and (3) would be in accord with SGB V. Methods for establishing QALYs measure and evaluate different dimensions of health benefit based on transparent and theoretically justified methods. They also capture the dimensions specifically stated by section sign 35b SGB V, e. g., extension of life or improvement in quality of life. Compared to ad-hoc synthesis of the different measures of patient benefit from clinical trials, this is more consistent with the standards of evidence-based medicine and health economics. Decision analytical modelling provides a practical and theoretically sound method to integrate the condition-specific evidence for estimating the costs and benefits associated with a medical treatment in health care practice. Both the establishment of health effects in terms of QALYs and decision-analytical models for evidence synthesis meet the requirements of SGB V. Further methodological issues that need to be addressed include guidelines for QALY measures, and the choice of analytical perspective that fits best with German law. This notwithstanding, it remains an open question how the appropriateness of a cost-benefit ratio should be appraised and what role cost-effectiveness should play in health care decision making, compared with other principles potentially relevant to the decision.

This article examines the issue of medical pro futuro statements within the context of Polish and German law. Medical pro futuro statements allow patients to specify their wishes regarding medical treatment in situations where they are unable to express them personally. In Poland, there is a lack of clear regulations governing this issue, leading to legal ambiguities and potential problems in medical practice. In contrast, in Germany, the regulations concerning medical pro futuro statements have been in place for over 15 years, providing patients with greater autonomy and legal certainty. The article concludes with de lege ferenda proposals for Polish legislators, based on an analysis of the German legal system.

A Socio-Historical Perspective.- Religion and Public Order in Modern Nation-States: Institutional Varieties and Contemporary Transformations.- Models of Church-State Relations and Their Impact on Freedom of Religion.- On the Relationship between Structural Norms and Constitutional Rights in Church-State-Relations.- The Model of State and Church Relations and Its Impact on the Protection of Freedom of Conscience and Religion: A Comparative Analysis and a Case Study of Israel.- German, Comparative and International Law Perspectives.- From the Acceptance of Interdenominational Christian Schools to the Inadmissibility of Christian Crosses in the Public Schools.- The Headscarf of a Muslim Teacher in German Public Schools.- Religious Garments in Public Schools in Separation Systems: France and the United States of America.- Religion and Religious Symbols in European and International Law.- Perspectives from Israeli Law.- Claiming Equal Religious Personhood: Women of the Wall's Constitutional Saga.- Does the Establishment of Religion Justify Regulating Religious Activities? - The Israeli Experience.- The Other Religion and State Conflict in Israel: On the Nature of Religious Accommodations for the Palestinian-Arab Minority.- Days of Worship and Days of Rest: A View from Israel.- Human Rights and Religious Duties: Informed Consent to Medical Treatment under Jewish Law.- The American Point of View.- Between Church and State: Mission Impossible?.- A Comment on Mark Weiner's Neutrality Between Church and State: Mission Impossible.

The legal status of the embryo is a surprisingly unsettled question in German law. Traditionally, family law deals with parents and children, it regulates custodial powers of the parents and the protection of children. Since an embryo is not yet a child, it is not per se included in statutory provisions which speak of 'children' or 'minors'. Increasing knowledge of the development of human life and modern techniques of artificial insemination in vitro and in vivo have led to a growing awareness of the human dignity to be attributed to an embryo. This aware­ ness has caused embittered discussions on the abortion issue. While the lawfulness of abortion is primarily a question of criminal law, the discussion has recently expanded into the family law field. I f an embryo constitutes human life, an analogous application of the provisions on custody and child protection seems an automatic conse­ quence. The issue is essentially one of protection: should the embryo in the mother's womb be afforded the same, or at least a similar protection as a child? In legal terms: can you ward a foetus, and should we ward a foetus? This question leads to two different sets of problems. First, is the embryo protected from abortion not only by the criminal law, but also and independently by family law? Secondly, may the state as parens patriae protect the embryo from any other conduct by the pregnant woman, such as sub­ stance abuse, drinking alcoholic beverages, and compar­ able dangers? Though this article will focus on the as yet rather undeveloped German legal discussion of these problems, it will also include some comparative materials with regard to English and US law. This article wil l not discuss dangers for the human embryo from scientific progress in the field of medically assisted procreation, in particular 'leftover' embryos and prenatal medical treatment or genetic altera­ tion of the embryo. In the field of private law, child protection 'post factum' is relatively well established. Provided the child is born alive, he or she is entitled to claim damages for injuries inflicted before birth or even before conception. It is disputed, however, whether the parents themselves are liable for damages too, i f they have caused injuries to the embryo, although it appears damages may be claimed i f the parents, or one of them, suffered a venereal disease, which has been transferred to the embryo. In other claims there is a tendency to distinguish between the father and mother: the father who negligently or intentionally has injured the embryo is treated like any other third party, while the mother, according to some legal authors, should not be held liable because of her right to personal freedom and pri­ vacy. I f the child has not been prenatally injured by human acts but has been born with pre-existing defects, or has been born healthy but unwanted by his or her parents, the German courts have had to decide the same issues as courts in other countries, known as 'wrongful birth' and 'wrongful life' actions. The results of such cases have been essentially the same as those in the USA or in the UK: while parents can recover damages for the birth of the child (more precisely, for their unwanted support obligations towards the child), the childs claim for 'wrongful life' has been rejected.

I thank Cressida Heyes and Lisa Kall for their careful and generous readings, and especially for questions they pose. Even as Heyes and Kall raise very different kinds of concerns, each fundamentally requires that I reflect more carefully upon issues of philosophical method that took me on improbable path that resulted Making Sense of Intersex. I am grateful for opportunity to respond to their criticisms among philosophers at Society for Phenomenology and Existential Philosophy. Though I cannot respond detail to all of questions raised by Heyes or Kall, I will try to address what I see as those which most directly challenge my arguments.RESPONSE TO HEYES: BACK TO NIETZSCHEHeyes is skeptical of my invocation of Nietzsche and value of my proposal that ressentiment is a motivating force surgical and hormonal normalization of bodies of children with atypical sex anatomies. Heyes contrasts my identification of ressentiment response of medical specialists who promote unnecessary medical interventions for intersex anatomies with Wendy Brown's identification of ressentiment her critique of identity politics Wounded Attachments (Brown 1993): Is ressentiment a generalizable attitude Heyes asks, in which those who deviate from norm are punished for their jouissance through moralizing revenge, or is it (as for Brown) moralizing revenge of disempowered? (Heyes 2016: 795). In other words, it doesn't seem to follow that physicians, who occupy positions of power and authority, can be understood to express ressentiment their treatment of obviously powerless children.To Heyes it might appear that an obvious extension of a Nietzschean analysis context of thinking about intersex would focus, as Brown vividly puts it, on the wounded character of politicized identity's (Brown 1993: 391). Brown casts a harsh light on contemporary claims to politicized identity, what 1990s was often expressed with respect to subjugated racial and sexual categories. Brown sees desire for recognition marked by politicized identity claims, a reiteration of regulatory, disciplinary society (398). Following Foucault-yet critical of what she sees as Foucault's curious optimism his confidence concerning possibilities of resistance (397)-Brown cautions that rather than emancipation, these claims to identity, expressed, as they must be, within terms ofdiscourses of liberal essentialism and disciplinary normalization, effectively replicate or reinforce mechanisms of power that produced subjugated positions from which activists now claim authority (398). In elaborating this claim, Brown brings Nietzsche into analysis, identifying proponents of identity politics and their claims to civic membership and political rights with those slaves Nietzsche's genealogy whose revolt resulted transvaluation of values.Reading Brown today, I might see claims by some intersex activists, including those wholly focused on demedicalizing intersex, an illuminating comparison. The skepticism Brown expresses with respect to prospects for resistance grounded identity claims is a prudent reminder of skepticism we should exercise with respect to promise of legal and political fixes focused on problem of assigning gender to newborns with what is still called ambiguous sex.Take for example acclaim that greeted 2012 German law mandating a sex assignment of X to intersex infants instead of M or F Hailed as an important advance, German law has been repeatedly misrepresented news media throughout Europe and US as offering parents a choice sex assignment of their children (see, e.g., Bendavid 2013; Heine 2013). As Swiss activist group Zwischengeschlecht (Between Genders) explained when law went into effect, this legislation does not fact provide parents with increased options, but formally prohibits registration of children with intersex as M or F Physicians, not parents, are vested with authority to register children's sex assignment. …

Protection against communicable diseases and the prevention of their transmission require continuous surveillance by the public health service. There is also a need for targeting certain -hygiene standards and expert advice concerning their application, especially in institutions where medical interventions provide an increased risk for patients, staff and the public (e. g., intensive care units in hospitals or ambulatory dialysis centres). While the kind of institutions at risk is sufficiently governed in the German law (either at national or state level), the frequency of side visits as well the content and depth of surveillance activities lack adequate regulation. As the implementation of the national Protection against Infections Act in 2001 has enlarged the work load of local public health authorities without adequate staff compensation a risk-based strategy is required for efficient work scheduling. In Rhineland-Palatinate a task force of experts mandated by the ministry of health has developed recommendations on how often and with which expertise side visits should be performed. Based on published evidence and expert knowledge, an assessment of the institutional risk has been conducted leading to concrete patterns. High risk areas should be monitored every year, whereas three-year and five-year intervals are sufficient for institutions at middle or low risk respectively. This scheme represents a standard which should be applied by all public health departments in the state (and maybe also in other states). On the one hand the execution of this standard is expected to ascertain more transparency, predictability and comprehensibility for all involved parties. On the other hand the time and qualification pattern complements the general guidelines of the national steering committee for hospital hygiene and infectious disease protection (KRINKO). It is hoped that the combination of both elements will support the professional -dialogue between public health authorities and representatives of the affected institutions -leading to a common understanding of what communicable -disease protection is all about.

The articles of the Convention of Human Rights and Biomedicine (MRK) connect any medical intervention with the »informed consent« of the patient out of respect to Human Dignity by physicians as weil as for treatments and research projects. Nevertheless it becomes apparent that the observation of this principle looses its significance for patients who are incapacitated because of temporal or permanent incompetance to represent their own interests or who are too young to do so. In these cases other attributes of Human Dignity and their observation have to replace the »informed consent«. For inclusion of patients who can't give their consent in clinical studies the MRK formulated strict conditions which exceed the legal prerequisites in Germany. Here clearly the investigation has to benefit each patient directly. The MRK (Article 17 ,2) widens this condition to investigations which may not benefit the patient himself, but serve a group of patients with the same illness or solve problems related to the desease. The deciding bodies will have to inform themselves very carefully not only about the facts for urgent research with incapacitated patients, but also must define terms like »no direct benefit « (Fremdnützigkeit) before German Law will allow adaptation to and ratification of the MRK

On the third of december 1967 the first human heart transplantation was performed. During the last decades the evolution of clinical heart transplantation went from a hazardous adventure towards a safe and very successful treatment for end-stage heart failure patients. The major limiting factor is the shortage of donor organs. Patients with end-stage heart failure without any treatment options for conventional heart surgery or medical treatment are suitable candidates for heart transplantation. The major contraindication is a refractory pulmonary hypertension with a high risk for postoperative right heart failure. Due to the lack of donor organs, there is an age limitation above 65 years for the acceptance of patients in the majority of transplant centers. The distribution of donor organs is regulated by the german transplant law with eurotransplant as the executive organization. Within an acceptable cold ischemic time of 4 hours, harvesting of the donor organ, transportation and implantation of the heart has to be done. The implantation technique was developed by R. Lower and N. Shumway. In some centers, the more advanced total orthotopic heart transplantation is the technique of choice with a reduced risk of AV-valve incompetence. Postoperative treatment is very similar to standard heart surgery patients. The major difference is the immunosuppressive treatment. A balance between the risk of rejection and the risk of infection due to over immunosuppression requires an individual monitoring and tailoring of the medication. Despite the risk of heart transplantation, long term survival with one year survival greater 80 percent and 5 year survival greater than 60 percent in this particular patient group is excellent. Besides survival, quality of live and exercise capability is well restored after heart transplantation.

This article presents a decision of the German Federal Court of Justice dealing with the question, whether life can be considered as damage which entitles to claim compensation of non-pecuniary and pecuniary damage. The question concerns the case of a person, whose state of health does not permit any communication; this person was kept alive by medical treatment, even if the person suffered from many diseases and it was evident, that the treatment will only shift the dead ahead. The court referred to the Constitution, dealing with the question, whether life can be considered in civil law as a damage. The decision and the background will be presented as well as the two previous decisions and a comparative description of the legal questions according German and Ukrainian Law. The purpose of article is to present a decision of the German Federal Court of Justice, which – as the Court states – deals with an unprecedented issue. Due to the fact, that situations, which were the background of the Court’s decision have no national limits, it is worthto present this topic also for a professional public outside Germany. The article is based on a method of comparative analysis of constitutional and civil law.The presentation of a Court’s decision and the comparative legal background has logically only the result of information for further discussion. However, the comparative presentation shows parallels on the level of the functions of rights and freedoms in a Constitution: they have the function to protect the individual against the interference of the state. But the rights and freedoms also create a system of values on the level of constitutional law which has to be considered in all spheres of national law – also in relations between private persons ruled by civil law.

The crime of impairing the prevention and control of infectious diseases is stipulated in Section 5 of the crime of impairing social management order in Chapter 6 of the criminal law of the people’s Republic of China (hereinafter referred to as the criminal law), which is article 330 of the criminal law. Under the backdrop of COVID-19, the application of the crime of obstructing the prevention and treatment of infectious diseases is facing new challenges because of the background of COVID-19. This article starts from the theory of the two stratum crime constitution of German and Japanese criminal law. At the illegality, the subject of the crime should be dealt with finely in order to better implement the principle of criminal law, adhere to the principle of a legally prescribed punishment for a specified crime, and at the same time, reconsider blank description of the crime. The legal interest protected by this crime is defined as complex legal interest, and the actual harm result and specific danger are redefined by using “contingency theory”. At the level of responsibility, this paper insists on the view that the form of crime is intentional, and uses the objective exceeding factors theory to make up for it, and refutes several other views. In addition, through the detailed consideration, economic consideration and subjective consideration of criminal policy, this paper discusses how to use this crime scientifically.

Since 2006, the German Society for Hospital Hygiene patronages the Journal “GMS (GermanMedical Science) Krankenhaushygiene Interdisziplinar”, an open access peer-reviewed PubMed listed e-journal. German Medical Science is a portal for online journals, meeting and research reports and offers all researchers in the field of medicine an open access to scientific articles and the possibility to publish their research results online. The journal “GMS Krankenhaushygiene Interdisziplinar” was founded to foster both, understanding and practice in the field of infection control. The Journal provides a forum for continuing exchange of information and opinions through contributions from scholars, professionals, policymakers, and others involved in infection control. Although the field of Infection Control is a dedicated medical speciality on its own rights, as other medical and surgical specialities as well, Infection Control is maybe unique in one aspect: Very few other medical disciplines have to be so much involved into the complete spectrum of medical treatment, diagnostics, and preventive aspects. There is not one single medical field, where an infection may not be present or may not be a known complication. Furthermore, healthcare associated infections are not restricted to one single hospital, one single region, country, or continent, but are a global challenge. The Journal specifically emphasises on amultidisciplinary approach aiming at collaboration with other medical societies at a higher level. Since 2008, the journal is PubMed-listed. It can be accessed at the web address http://www.egms.de/en/journals/dgkh/. In light of this discipline’s enormous scope, it is not surprising that Infection Control related research is published in almost all categories of medical literature. Papers with Infection Control related content are found as lead articles in general medical, internal medicine, general surgical, urological, vascular surgical, and many more journals. Aside of this a number of high-impact dedicated Infection Control journals do exist. This realises the question, why a journal such as “GMS Krankenhaushygiene Interdisziplinar” is needed. There are at least two reasons: Firstly, a number of authors from German speaking countries have frequently made the experience how difficult it is to publish epidemiologic data relevant for Infection Control aspects in Germany, Austria, or Switzerland in international journals, mostly dominated by US or British publishers. Indeed, some Infection Control aspects related to German or Austrian federal laws are of importance there, but US readers may correctly ask what the relevance of such articles is to them. Therefore, a “local” Infection Control Journal is needed to serve as platform to share important “local” information. An example of this is an article published in this issue of the journal which reports important data on infrastructure of German hospitals and institutions caring for elderly inand outpatients [1]. Secondly, as highlighted, the scope of Infection Control is so broad, that some important articles on very rare, rather unusual, or extremely selective aspects may not be publishable, simply because they do not fall into any category of existing journals. One example for this is an article which explores the practice of none-replacement of i.v. administration sets after each change of intermittently administrated antibiotic infusions [2]. The Journal was given the name “GMS Krankenhaushygiene Interdisziplinar”, which means translated interdis-