Legal Questions Research Articles

Medicolegal pitfalls when assessing decision-making capacity in people with cognitive impairment.

The global population of older adults willdouble over the next three decades, and one in 10 will have dementia. This article examines medicolegal pitfalls when assessing the decision-making capacity of cognitively impaired patients. Be aware of the pitfalls while completing the five steps of the assessment. Step 1, the request for a capacity assessment, alerts the clinician that this is more than an administrative form-filling task and that the consultation is not therapeutic. Step 2, initiation of the consultation, requires being prepared for a new diagnosis of dementia, explicitly obtaining consent andunderstanding the expectations of all involved. Step 3, the clinical assessment, requires avoiding assumptions about the patient and the law, completing tests of cognition, including executive function, and ensuring a detailed understanding of the matter requiring a decision. Step 4, the formulation of opinion and documentation, requires documenting and addressing the legal questions about function and impairment. Step 5, review and reflect assuming somebody will contest theopinion.

Legal Aspects of Alzheimer Prediction

AbstractBackgroundWhen diagnostic and therapeutic measures are increasingly replaced by predictive methods and preventive treatments, the applicable law is also subject to a variety of effects. In particular, a major question is about the eligibility of predictive measures for reimbursement by the statutory health insurance schemes in different countries. Secondly, in spite of the chances associated with early knowledge about disease risks, there can be negative legal and factual disadvantages, e.g. disclosure obligations for insurance contracts. Thirdly, the existing requirements for medical information and consent must be reassessed: The decision about the determination of future risks is particularly and increasingly complex, while the extent of the legal obligation of the physician to inform about decision‐relevant but not specifically medical remote effects has not yet been conclusively clarified.MethodWe scrutinize existing legislation and jurisprudence from Germany, Switzerland and Spain to identify uncertainties, hindrances or gaps in the existing legal framework, suggest adjustment and recommend legally safe and ethically justified paths for medical care in light of the changes described above.ResultThe existing legal framework bears uncertainties for the application of increasingly available methods to predict the individual risk for Alzheimer’s dementia. Therefore, an ethico‐legal framework for responsible and patient‐oriented dementia prediction is being developed.ConclusionThe poster highlights the most pertinent legal questions and challenges associated with dementia prediction, and shows the integration of empirical data and ethical assessments into an ethico‐legal framework.

ONRECHTMATIG OVERHEIDSDAAD BY THE GOVERNMENT ON THE LIABILITY OF THE GOVERNMENT REGULATION (CASE STUDY ON LAW NUMBER 18 OF 2017)

This paper discusses about "Government Actions Against the Obligation to Prepare Government Regulations from Law No.18 of 2017" in the form of a Legal Memorandum. Where the Government in making and issuing Government Regulations from Law No. 18 of 2017 has exceeded the time limit that has been regulated in in law. The legal questions that arise are (1) is the government's attitude that exceeds the time in issuing the Government Regulations an act of the government in carrying out government administration functions? (2) Is the government's attitude exceeding the time in issuing the Government Regulations a violation of State Administration law? This study uses normative legal analysis. The purpose of this writing is the invention of recommendation given by the author for consideration to readers and the people of Indonesia, especially is those who feel be anggrieved by the government’s actions in the state arrangement. The results of the analysis of this Legal Memorandum conclude that the government's action is an administrative function of the government and is an unlawful act. As for the recommended recommendations, citizens who feel aggrieved by the government's actions can take repressive actions against government actions from Law No.18 of 2017, these citizens can sue the President to the State Administrative Court as an authorized court according to law after committing administrative effort.

The Voluntary Carbon Market – Fast-Changing Landscape and Tax Implications

As the voluntary carbon market gets more mature, market participants are faced with significant tax and regulatory challenges that can create uncertainty and may hamper the market’s development. This article provides an overview of the fast-changing landscape and illustrates a number of the policy, legal and tax questions that will be increasingly pressing in the years to come.

The Interplay Between the CJEU and National Courts in the Case Law on Unfair Contract Terms in Foreign Currency Loans: A Comparative Overview

Abstract Over the years, the UCTD has become one of the core EU directives aiming at the protection of both businesses and consumers (B2C), i.e., at the achievement of the appropriate balance between the parties’ rights and obligations. However, the UCTD has also left quite a number of important legal questions unanswered. Besides the general clauses on the assessment of the unfairness of contractual terms, there remains a high degree of uncertainty as to the meaning of the transparency requirement and the legal consequences of unfair contractual terms. As a result, in spite of CJEU settled case law, as well as European Commission interpretation guidelines, there are diverging patterns in the national case law of the Member States. The aim of this paper is to investigate these diverging patterns by looking more closely into national case law and into the relationship between the CJEU and the Member States courts, taking as a case study the way in which the UCTD was applied in five countries (Austria, Croatia, France, Italy and Poland) in cases involving consumer loans indexed to the Swiss franc. The survey shows that there are noticeable differences in the interpretation of core concepts underlying the UCTD, such as the unfairness test, the exclusions from the unfairness assessment, and the transparency requirement. The most problematic areas, however, concern the legal consequences of the unfairness of contractual terms. By relying on the analysis of these and related issues, the authors have come to the conclusion that347 even after 30 years of the existence of the UCTD, there are still many important legal questions that need solving.

The Court and the Sleeping Beauty 2.0: Filling the Contractual Gap, or Making Valid Consumer Contracts to the Detriment of the Non-consumer?

Abstract This paper is a critical presentation of the CJEU case-law on UCTD, with particular reference to the non-filling of the contractual gap resulting from the unfairness test by applying ‘dispositive’ law or supplementary interpretation. The result contradicts the principles and methods of national civil law: not only does the balance in the contract suffer under the position the CJEU has chosen, as it creates alternated forms of balance of interests rather than the identical ones sought by the parties, but moreover, the increasing number of different cases imposes an ambiguous approach on the CJEU, since European judges have to ask on a case-by-case basis what the best interest of the consumer is. By adopting such a functional approach in favour of the substantive justice of the contract, the ECJ decided with questionable results with regard to national civil law, while methodological legal questions as to whether the contract should stand as it is, following the unfairness test, or whether a supplementation of the contract should take place are still open. It is therefore of critical importance to achieve an optimal combination between a fair balance of the contract and effective consumer protection.423

Law Regarding the Status of Children Outside of Wedlock: in the Perspective of the Rights of Parents and Children

The Indonesian state, as stated in the 1945 Constitution, initially declared itself a legal state before undergoing amendments. After the amendment, the statement changed to "Indonesia is a state of law." This means that every action taken by the government or state must comply with the legal provisions in force in Indonesia. The principle of the rule of law is regulated in the 1945 Constitution, Article 1 Paragraph (3), both before and after the amendment, indicating that Indonesia is a country based on law. Indonesian law also regulates the rights and obligations of parents in the modern era. The development of modern society brings changes in interpersonal relationships, especially in the family context. The main issue that emerged was regarding the status of children born out of wedlock, reflecting shifts in social values and raising complex legal questions regarding the rights of parents and children. With the significant increase in the number of children born outside of marriage, there is a need to review the legal system that regulates the status of children outside of marriage. The primary focus is on the parents' and children's rights perspective, with attention to child recognition, custody, and financial responsibilities.

Neuroethics and neurolaw in forensic neuropsychiatry: A guide for clinicians.

As neuroscience technologies develop, ethical and legal questions arise regarding their use and societal impact. Neuroethics and neurolaw are growing interdisciplinary fields that address these questions. This review article presents the research agenda of both areas, examines the use and admissibility of neuroscience in expert testimony and legal settings, and discusses ethical issues related to forensic neuropsychiatrists claiming expertise in neuroscience, formulating medical opinions based on neuroscience, and considering its relevance to criminal responsibility. Forensic neuropsychiatrists should be aware of emerging neuroscientific evidence, its utility and limits in rendering diagnoses and explaining behavior, and, before seeking such evidence for legal purposes, its availability and admissibility. When testifying in matters involving neuroscientific evidence, ensuring truthfulness and balance, having sufficient and validated knowledge (including openness with confirming and disconfirming evidence), understanding standards of practice, and drawing relevant and appropriate conclusions remain important.

“Smart” production — the reality and vector of modernity in the context of law

The article analyzes some elements of the way of Russia’s industry to the technological design of “Industry 4.0” through the prism of artificial intelligence, industrial Internet of things, “smart” manufacturing and robotics. The author comes to the conclusion that these practical embodiments of the idea of “Industry 4.0” already raise a number of ethical and legal questions — the need for: developing a new notion of the “source of increased danger” / “ultra-hazardous activity”; elaborating new subjects of responsibility for the harm caused; determining a person’s place in “smart” production in the context of the emergence of new, atypical forms of employment (for example, platform employment); searching for new guarantees of human employment, etc., which require answers.

The Contribution of itlos to Fight Climate Change: Prospects and Challenges of the cosis Request for an Advisory Opinion

Abstract On 12 December 2022, the International Tribunal for the Law of the Sea (itlos) received a request from the Commission of Small Island States on Climate Change and International Law (cosis) to render an advisory opinion in order to clarify the obligations of States under the 1982 United Nations Convention on the Law of the Sea (unclos) to protect and preserve the marine environment in relation to climate change, including ocean warming, sea level rise, and ocean acidification. Although itlos has dealt with environment-related issues in the past, it has not yet specifically dealt with climate change and its (in)direct impacts. This contribution, drawing on the first opinion delivered by the Tribunal in 2015, aims to scrutinize some critical legal questions that the request will inevitably face, engaging particularly with its main procedural and substantive aspects. Since it is unlikely that itlos will encounter any unsurmountable obstacles to render the opinion, it would be expected that the Tribunal will take this opportunity to shed light on the implications of climate change for the legal regime of the sea, but also on the role of the Tribunal itself, to definitively clarify its advisory function.

Exploring the complexities of posthumous reproduction in fertility preservation for oncology patients with poor prognosis.

The field of fertility preservation (FP) for oncology patients has evolved significantly in recent years, offering new possibilities for individuals with life-threatening illnesses. We commend Jones et al. for their comprehensive ethical review of offering FP to patients with poor prognoses, acknowledging the potential benefits that it may bring. "Poor prognosis" in this context implies a high likelihood of death due to cancer progression. We highlight the importance of considering posthumous reproduction, involving the use of cryopreserved gametes or embryos to conceive a child after one or both partners have passed away, a topic briefly mentioned by Jones et al. Posthumous reproduction raises complex ethical, logistical, and legal questions. Distinctions between cryopreserved sperm and oocytes are discussed, with each scenario presenting unique challenges. The article also examines the complexities faced by same-sex couples in posthumous reproduction, addressing issues related to donor selection, legal parentage, and rights. Legal and regulatory aspects play a crucial role, including obtaining clear and legally valid consent, defining parental rights, navigating surrogacy laws, and addressing inheritance and estate planning. Ethical dilemmas require healthcare professionals to ensure informed decision-making, consider psychological impacts, and offer information on alternative family-building options.

Behavioural Genetics in the Context of Proof Within Civil Procedure

Since being established as a separate branch of scientific knowledge, behavioural genetics has raised many ethical, legal and social questions. The identification of the genetic origins of behaviour is expanding beyond the scientific field into socially relevant areas such as justice, education and health care. The development of new techniques and analytical approaches, including genome sequencing, non-invasive prenatal testing and optogenetics, has clearly changed the direction of further development of behavioural genetics. This has also transformed the legal and social contexts of biomedical research analysed in this article. The author discusses the expanded scope of behavioural genetics which has become prominent in many countries. The author further focuses on the ethical, legal, social and political issues raised by the potential application of behavioural genetics used for evidentiary purposes in legal proceedings. The author draws the conclusion that behavioural genetics and behavioural genetic evidence are of significant value in determining circumstances relevant to a given case, thus assisting the court in coming to a legitimate and well-reasoned decision. By examining specific categories of cases (civil torts and guardianship cases), the author shows how the application of behavioural genetics can ensure that the rights of certain vulnerable groups (juveniles and persons with mental health problems) are adequately protected.

Identifying the Most (Cost‐)Efficient Regions for CO2 Removal With Iron Fertilization in the Southern Ocean

AbstractOcean iron fertilization (OIF) aims to remove carbon dioxide (CO2) from the atmosphere by stimulating phytoplankton carbon‐fixation and subsequent deep ocean carbon sequestration in iron‐limited oceanic regions. Transdisciplinary assessments of OIF have revealed overwhelming challenges around the detection and verification of carbon sequestration and wide‐ranging environmental side‐effects, thereby dampening enthusiasm for OIF. Here, we utilize five requirements that strongly influence whether OIF can lead to atmospheric CO2 removal (CDR): The requirement (a) to use preformed nutrients from the lower overturning circulation cell; (b) for prevailing iron‐limitation; (c) for sufficient underwater light for photosynthesis; (d) for efficient carbon sequestration; (e) for sufficient air‐sea CO2 transfer. We systematically evaluate these requirements using observational, experimental, and numerical data in an “informed back‐of‐the‐envelope approach” to generate circumpolar maps of OIF (cost‐)efficiency south of 60°S. Results suggest that (cost‐)efficient CDR is restricted to locations on the Antarctic Shelf. Here, CDR costs can be <100 US$/tonne CO2 while they are mainly >>1,000 US$/tonne CO2 in offshore regions of the Southern Ocean, where mesoscale OIF experiments have previously been conducted. However, sensitivity analyses underscore that (cost‐)efficiency is in all cases associated with large variability and are thus difficult to predict, which reflects our insufficient understanding of the relevant biogeochemical and physical processes. While OIF implementation on Antarctic shelves appears most (cost‐)efficient, it raises legal questions because regions close to Antarctica fall under three overlapping layers of international law. Furthermore, the constraints set by (cost‐)efficiency reduce the area suitable for OIF, thereby likely reducing its maximum CDR potential.

Hospital pharmacist challenges in evaluation of scientific evidence and its incorporation to pharmacotherapeutic protocols through therapeutic committees in COVID-19 times

Type 2 coronavirus pandemics that is plaguing almost all the world has caused qualitative and quantitative strains in health systems that have had to be responded to. The lack of known vaccines and effective treatments has generated the need to use drugs with very little evidence for their incorporation into pharmacotherapeutic protocols agreed by the clinical team. The hospital pharmacist, within the multidisciplinary team, has been responsible for critically evaluating the alternatives and positioning them in these protocols.Finally, some ethical and legal questions that should be considered in this scenario are analyzed in this article.

The Legal Framework for Artificial Energy Islands in the Northern Seas

Abstract Belgium, Denmark and the Netherlands have announced their interest in constructing artificial ‘energy islands’ to enable the integration of large-scale offshore wind energy into the energy system. This raises several legal questions, such as how do these developments fit in the balance of interests required by the United Nations Convention on the Law of the Sea, what European Union law is applicable to artificial islands and how Belgium, Denmark and the Netherlands approach the construction of artificial islands. This article provides a comprehensive overview of the applicable legal framework and shows the variety of approaches and strategic choices States may have when developing energy islands.

Regulating free speech in a democracy: Lysias 10Against Theomnestosand the law on slander

AbstractLysias 10Against Theomnestosis the only surviving example of a classical Greek speech on a charge of slander (dikē kakēgorias). The case turns on establishing communal consensus in evaluation of meta-discursive claims: assertions as to what the law says about what citizens can say about their fellow citizens. I adapt Marmor’s account of the pragmatics of legal discourse to illuminate the litigants’ strategies as they seek to control interpretation of the legal question in this much-discussed case from 380s BC Athens. We see how each party used different assumptions about the law’s implicatures as well as its declarative meaning and presented these assumptions as grounded in common sense. The persuasive methods used by Lysias’ client are illuminated by means of cognitive narratology’s application of Lewisian possible-world logic to the creation of story-worlds and the relationships they generate between narrator and reader/audience. So understood, Lysias’ speech helps answer questions about the role and limits of free/frank speech (parrhēsia) in democratic Athens and about the relationship between individual agency and the collective agency of thedēmos, questions crucial to an understanding of the place of legal discourse and legal conflict in the ideology and day-to-day praxis of the democratic city.

La formation des professionnels en psychiatrie légale : résultats d’une enquête en Occitanie

ObjectivesSince the enactment of the French law of 4 March 2002, patients’ rights have been the subject of constant legislative evolution and particular attention from many independent administrative authorities. In psychiatry, these have led to numerous legal reforms over the years. Moreover, psychiatry is a medical specialty with abundant, long-standing and more than ever topical interactions with the judicial system (psychiatric care without consent, isolation and restraint, court-ordered care, psychiatric care in prisons, treatment of perpetrators of sexual violence, judicial expertise or the question of lack of criminal responsibility due to a mental disorder). In response to the many legal questions asked by medical and paramedical teams, and to the growing interest in research in forensic psychiatry, a unit called EPL (Espace de Psychiatrie Légale) was created, composed of a multidisciplinary team, based in the department of Haute-Garonne, France. In order to adjust its scope of intervention, a questionnaire was distributed to mental health professionals to assess their training needs in forensic psychiatry. In this article, we aim to present and discuss the results of this survey. MethodsWe used a self-assessment survey designed by the multidisciplinary team of the EPL and which was filled out online by the respondents. The target population was all the professionals working in mental health facilities, members of the FERREPSY Occitanie research federation. The questionnaire consisted of several sections relating to the respondents, the typology of patients under their care, the professionals’ daily practice, and training in and knowledge of forensic psychiatry. We included some open-ended questions on the situations encountered that may have presented difficulties and on the impact of legislative changes on the daily practice of professionals. All responses were analyzed anonymously. ResultsFrom 05/05/21 to 17/07/21, 155 professionals responded. Most of them were psychiatrists (32.3%), healthcare managers (20.6%) or nurses (18.7%). The majority were women (78.7%) and had been working in Haute-Garonne for more than 5 years (74.2%). 56.1% of the professionals worked in outpatient units, 37.4% in inpatient wards and 74.8% in adult psychiatry. This questionnaire revealed a strong need for training in forensic psychiatry. Indeed, 94.8% of respondents wanted to receive training in forensic psychiatry, which contrasts with the number of people who had already received training in this area (15.5% in initial training, 32.3% in continuing education). The results highlighted that the most common forensic situations encountered in daily clinical practice concerned areas where professionals considered their knowledge to be insufficient. In addition, the self-assessment scales used were able to highlight specific training topics that should be developed. ConclusionsThe results of this survey therefore establish a basis for making adjustments to future educational interventions involving forensic psychiatry, which, although it has only recently emerged in France, embraces issues that have always concerned the management of patients receiving psychiatric care.

Old Rules to Fix New Problems: Counterterrorism, Refugees and Withdrawal of Nationality

Abstract The international legal regimes for refugees and for statelessness have much in common. Both aim at mitigating an absence of State protection of individual rights, while the treaties central to each are related in substance, structure and seek to balance similar concerns. Another similarity is more recent: both face challenges amidst new concerns and new law in the area of counterterrorism. The last two decades have seen a sharp increase in international rules on counterterrorism, the impact of which can also be seen in immigration law and administrative powers. That impact is conditioned by how ‘terrorism’ itself is defined, and Section 2 of this article will highlight some consequences of domestic approaches and why the capacity of international law to impose limits on domestic definitions is often overstated. Section 3 will consider the interaction between counterterrorism law and refugee law, arguing that current difficulties arise not from the substance of the rules but from practical, resource-based challenges. Section 4 will consider legal and practical questions raised by recent practice in withdrawing nationality due to suspected involvement in terrorism, a measure applied to both dual nationals and to those at risk of statelessness. This article will argue that the new threats and responses thereto do pose important practical challenges requiring further attention and resources. But that does not mean that new substantive law is required: the ‘old rules’ adequately balance security concerns with the protection of individual rights, and are more than adequate to meet contemporary challenges.

Urgensi Penetapan Air Defense Identification Zone Pada Kawasan Regional

Introduction: Air Defense Identification Zone (ADIZ) is a zone for identification purposes in the air defense system for a country, which according to international custom generally extends from the territorial area of a country to reach the air space above the free sea bordering the country.Purposes of the Research: to find out the setting of the Air Defense Identification Zone and what is the urgency of establishing the Air Defense Identification Zone in the regional area. The method used in writing this thesis is a normative research method. The legal materials used are primary, secondary and tertiary legal materials.Methods of the Research: This legal research, the author uses normative research. That is, a study that primarily examines positive legal provisions, legal principles, and legal doctrines to answer legal questions faced. Results of the Research: The results obtained are that the regulation of the Air Defense Identification Zone (ADIZ) according to international law is, based on the provisions of the 1944 Chicago Convention, customary international law and also Article 51 of the United Nations Charter, furthermore with the stipulation of ADIZ in a regional area can be considered a defensive step. to provide advance notice of potential threats and efforts to improve flight safety in the region and provide benefits to national and international aviation safety.

Corporate Personhood, Again?

The idea of the corporate person continues to present problems for politics, especially through the framing of corporate power and responsibilities as legal questions. Meanwhile, traditional theories of liberalism and pluralism struggle to comprehend the corporation as either a participant in politics or a site where politics occur. Theorists of democracy likewise express anxiety about the impact of corporations even while theorists of business ethics invoke the notion of corporate citizenship to restrain corporations through democratic ethics. This article analyzes recent contributions to debates about the role of corporations as legal persons. The article then argues that legal debates, while important, can also serve to limit an understanding of the social and political contexts in which economic actors like corporations exercise power. Recognizing those limits reveals the need for a broader range theoretical frameworks beyond the legal to comprehend corporate power.