Autonomy Rights Research Articles

EPA-0490 - Abuse in the elderly population

In 1995 was celebrated the first consensus conference of abuse in the elderly population. In this consensus, abuse was defined as 'any act, or omission, that causes damage (intentional or not) practiced on people with 65 years or older, that can appear: in family, community or institutional environment, that can harm or endanger the physical and/or mental state, and the principle of autonomy or other fundamental rights of the individual, subjectively perceived or objectively verifiable. There are different types of abuse: physical, sexual, emotional or psychological, abandonment, neglect and financial. The abuse in the elderly is a little known phenomenon at all levels (legal, medical, social), it is very important to learn about it and be able to identify the characteristics (signs of abuse, vulnerabilities of victims ...) in our work place to protect them We are going to talk (with two clinical cases) about one of the most unknown kind of financial abuse: the undue influence. It is a legal concept in which, the dominant part (through various tactics: adulation, insistence, deceit... and with a relationship of trust) takes advantage of its influence for economic purposes. The undue influence does not occur in a single act, it consists in a pattern of behaviors, a process of manipulation etc... An effective assessment can prevent needless emotional and financial losses of the victims and help them maintain their autonomy.

Elementos teóricos para la comprensión y exigibilidad de los derechos sociales en el estado social y constitucional de derecho

This article intends to reiterate from the theoretical and academic contributions the impact that supposed the consolidation of the rule of law in Economic, Social and Cultural Rights that allows the construction of a democratic model having as central the human, their needs and dignity as the supreme value of being born all other freedoms. A descriptive methodology to accurately collect the different theoretical proposals about the above two premises raised is proposed. The ideas and theoretical here addressed and resumed discussions are the result of the research performance of academic nature of seedling Human Law St. Thomas University - Medellin within the project “ Incorporation of international legal instruments relating to Economic, Social and Cultural Rights in judgments of the Constitutional Court on Social Rights as a trend towards recognition of DESC as autonomous fundamental right.”

Corporations and the Presumption of Innocence

Corporate behaviour is often regulated through the criminal law by means of reverse onus offences. Such offences are alleged to involve violations of the Presumption of Innocence. Such allegations almost always assume natural persons as defendants. The arguments supporting reverse onus offences are typically instrumental, to do with the importance of the social goals promoted and the ease of proof. The Presumption of Innocence is taken to be an autonomy right of natural persons and so not subject to being sidelined for reasons of law enforcement expediency. Corporations, however, are not natural persons: they have no autonomy right not to be treated as means. It may well be, then, that reverse onus offences are justified in the case of corporate defendants. I argue that the Presumption is not violated by such offences in the case of corporate defendants. I develop a broad concept of the criminal justice system as an allocative system, and argue that reverse onus offences properly allocate the burden of proof for corporations. Specifically, I argue that the normative demand for legal innocence is sufficiently met by the availability of a due diligence defence; that the responsibility of corporations when prohibited harms occur is properly a form of outcome-responsibility; and that taking into account issues of reciprocity, legitimacy and power reverse onus offences justly allocate the burden of proof in the case of corporate defendants.

IP Kenya: A blog review

‘A book may be good for nothing; or there may be only one thing in it worth knowing; are we to read it all through?’ (Samuel Johnson) This section is dedicated to the review of ideas, articles, books, films and other media. It will include replies (and rejoinders) to articles, the evaluation of new ideas or proposals, and reviews of books and articles both directly and indirectly related to intellectual property law. Although starting with a mystifying and slightly confused post in Latin, Victor B. Nzomo's IP Kenya Blog subsequently delivers what it promises: it is insightful, informative and covers a broad area of IP subject matter both on a Kenyan and on a pan-African level. The blog entries, the author's personal input and the readers' comments have progressively increased since January 2011, when the blog was launched by the Kenyan lawyer. With an average of six entries per month in 2013, some posts spark debates on controversial aspects of IP—in Kenya and worldwide—such as the legislative protection of traditional knowledge, the granting of business method patents and the institution of an autonomous publicity right. The author summarizes all Kenyan IP legislative acts and reports pertinent cases, mainly from East and South Africa.

The Slaves’ Gamble: Choosing Sides in the War of 1812 by Gene Allen Smith (review)

Slaves' Gamble: Choosing Sides in the War of 1812. By Gene Allen Smith. (New York: Palgrave MacMillan, 2013. Pp. 257. Cloth, $27.00.)The 200th anniversary of the War of 1812, marked by documentaries, radio programs, and international conferences, sparked numerous reevaluations of the changing historiography of the war, both in social and military history. One point of discussion that emerged in forum after forum was the peculiar regional facets of the war, which seem to defy efforts to create a unified narrative.Studies of the conflict, and interpretations of it, vary considerably depending on whether it is viewed as a frontier war of Indian removal, a legacy of hostilities from the American Revolution, or a sideshow of the Napoleonic wars. In his book Weight of Vengeance (New York, 2012), Troy Bickham notes a strong tendency to localize the study of the War of 1812, so that the Canadian campaigns, the Chesapeake, or naval actions alternately take center stage. Or, as Jeremy Black observes, The War of 1812 is difficult to discuss clearly because it was a particularly disparate struggle and, therefore, without any central narrative. There were separate campaigns on the Canadian frontier ... as well as around Chesapeake Bay and its river system, and in the Gulf of Mexico.1 Or again, as J. C. A. Stagg notes in the introductory essay to War of 1812: Conflict for a Continent, Successive generations of American and Canadian historians developed two parallel streams of historiography about the place of the War of 1812 in their national narratives, with little thought being given to the possibility that the streams might, or should, intersect.2Gene Smith's Slaves' Gamble joins a number of other studies that avoid a regional perspective on the war by examining its impact on specific segments of the population. Smith opts for wide geographic and cultural coverage as he traces the significance of the war for free and enslaved people of color, and simultaneously illustrates how black soldiers, contrabands, and civilians fared during the war years. work opens with an overview of the integration of men of color, both free and slave, into the fighting forces of colonial America and the early republic. Smith then covers the imperial borderlands of the United States (British to the north, Spanish to the south). colonial inhabitants of these two areas lived in tense juxtaposition with their American neighbors, in part because the frontier areas provided Indian tribes with autonomy and land rights that impeded U.S. expansion; and in part because enslaved people had a chance at liberty if they could get across the international border. Besides this, both areas were hard-pressed to fill the ranks of their militia forces, creating opportunities for free blacks or fugitives from slavery to enlist.Drawing heavily on previous research, notably Jane Landers's Black Society in Spanish Florida (Urbana, IL, 1999), Smith shows how border tensions came to shape African American participation in the War of 1812 along the frontiers. This theme is then expanded to consider the place of black soldiers in overall British military strategy once war with the United States broke out. With personal stories drawn from memoirs, military correspondence, and other sources, Smith outlines the decisions confronting people of color in all the theaters of the War of 1812: service in the British or American navies, flight from the war zone, recruitment into the army, alliance with Native Americans. …

Theorising Children's Rights in Youth Justice: The Significance of Autonomy and Foundational Rights

This paper develops a theoretical approach to children's rights in youth justice, located within a wider rights‐based theory of criminal justice which emphasises the centrality of citizens' autonomy. Understanding what is special about children's rights in the youth justice system requires an understanding of how children's autonomy differs from that of adults. One difference is that within the legal system children are not considered to be fully autonomous rights‐holders, because childhood is a time for gathering and developing the assets necessary for full autonomy. These assets should be protected by a category of ‘foundational’ rights. It is argued that an essential component of a rights‐based penal system for children is that it should not irreparably or permanently harm the child's foundational rights. The concept of foundational rights can then underpin and strengthen international children's rights standards, including those relating to the minimum age of criminal responsibility, differential sentencing for children and adults and a rights‐based system of resettlement provision.

Social dialogue in the sports sector at EU level

The European sectoral social dialogue is rapidly becoming a pillar of European governance. It enables professional relationships to form in Member States, respecting each country’s autonomous rights, in line with the subsidiarity principle. European sectoral social dialogue is created through the initiative of the European social partners, that is, representative groups of employers and employees in the relevant sector. The dialogue materializes through the formation of a sectoral social dialogue committee as an official discussion and negotiation forum. Creating a sectoral social dialogue committee in the sports sector is a difficult process because of the specific characteristics of sport, the involvement of young people, the lack of social dialogue at national level in sport, as well as problems with the representativeness of employers’ and employees’ organizations and sectoral segmentation.

The Federalist Society: how conservatives took the law back from liberals

Over the last thirty years, the Federalist Society for Law and Public Policy Studies has grown from a small group of disaffected conservative law students into an organisation with extraordinary influence over American law and politics. Although the organisation is unknown to the average citizen, this group of intellectuals has managed to monopolise the selection of federal judges, take over the Department of Justice, and control legal policy in the White House. Today the Society claims that 45,000 conservative lawyers and law students are involved in its activities. Four Supreme Court Justices - Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito - are current or former members. Every single federal judge appointed in the two Bush presidencies was either a Society member or approved by members. During the Bush years, young Federalist Society lawyers dominated the legal staffs of the Justice Department and other important government agencies. The Society has lawyer chapters in every major city in the United States and student chapters in every accredited law school. Its membership includes economic conservatives, social conservatives, Christian conservatives, and libertarians, who differ with each other on significant issues, but who cooperate in advancing a broad conservative agenda. How did this happen? How did this group of conservatives succeed in moving their theories into the mainstream of legal thought? What is the range of positions of those associated with the Federalist Society in areas of legal and political controversy? The authors survey these stances in separate chapters on regulation of business and private property; race and gender discrimination and affirmative action; personal sexual autonomy, including abortion and gay rights; and American exceptionalism and international law.

On a Peak in Darien: Community Peace Initiatives in Uraba, Colombia

All over the world, rural and minority communities are vulnerable to human rights violations, often due to larger economic interests in their land. This policy and practice note argues that it is important to recognize community initiatives that denounce and resist such risks as acts of autonomous human rights defence. To illustrate this, it looks at two experiences of community organization and resistance in Urabá, Colombia: the organization CAVIDA and their Humanitarian Zones in Cacarica, and the Peace Community of San José de Apartadó. The paper examines the context in which these experiences have emerged, how the communities were displaced off their land, and how they developed strategies for returning, despite ongoing conflict. It looks at the risks they face and the combination of complementary protection mechanisms they use in order to remain on their land. While being context specific, these experiences also have wider resonance for community human rights defence and protection strategies, especially against violations linked to economic interests and interests in maintaining impunity, and for pioneering the right to non-participation in armed conflict.

The Right to the Protection of Personal Data: A New Fundamental Right of the European Union

For some decades, the right to privacy and the right to the protection of personal data seemed to be the same thing. Since 2008, the case-law of the ECJ has started considering them as autonomous rights, although the first is considered to be strictly connected to the second.The Treaty of Lisbon brought two important innovations in the data protection sector. Firstly, Article 8 of the Charter of Fundamental Rights of the EU, on the right to the protection of personal data, became legally binding, thanks to the amendment of Article 6 TEU. Secondly, Article 16 TFEU granted the European Institutions the power to lay down rules, according to the ordinary legislative procedure, relating to the protection of individuals with regard to the processing of personal data.The recent inclusion of the right to the protection of personal data in primary EU law highlights the problem of the extent of the competence of the EU in this sector. Moreover, one may wonder whether the Lisbon reform provides any advantages to citizens in terms of personal data protection.This article tries to answer these questions, reconstructing the right to the protection of personal data.

Forced genital cutting in North America

This article will examine forced nontherapeutic genital cutting (FNGC) through the lens of feminist theory and in relation to the concept of social justice in nursing. I will address the underlying assumptions of feminism and how they apply to the two currently legal forms of FNGC in North America: male infant circumcision and intersex infant/child genital cutting. Through a literature review and critical analysis of these practices, I will illustrate the challenges they present when considering the role of nurses in promoting social justice. If feminism asserts that bodily integrity, autonomy, and fundamental human rights are essential components of gender equality, it follows that these must be afforded to all genders without discrimination. Historically, there have been few feminists who have made this connection, yet a growing and diverse movement of people is challenging the frameworks in which we consider genital cutting in our society. Nurses are positioned well to be at the forefront of this cause and have a clear ethical duty to advocate for the elimination of all forms of FNGC.

Corporations and the Presumption of Innocence

Corporate behavior is often regulated through the criminal law by means of reverse onus offenses. Such offenses are alleged to involve violations of the Presumption of Innocence. Such allegations almost always assume natural persons as defendants. The arguments supporting reverse onus offenses are typically instrumental, to do with the importance of the social goals promoted and the ease of proof. The Presumption of Innocence is taken to be an autonomy right of natural persons and so not subject to being sidelined for reasons of law enforcement expediency. Corporations, however, are not natural persons: they have no autonomy right not to be treated as means. It may well be, then, that reverse onus offenses are justified in the case of corporate defendants. I argue that the Presumption is not violated by such offenses in the case of corporate defendants. I develop a broad concept of the criminal justice system as an allocative system, and argue that reverse onus offenses properly allocate the burden of proof for corporations. Specifically, I argue that the normative demand for legal innocence is sufficiently met by the availability of a due diligence defense; that the responsibility of corporations when prohibited harms occur is properly a form of outcome-responsibility; and that taking into account issues of reciprocity, legitimacy and power reverse onus offenses justly allocate the burden of proof in the case of corporate defendants.

Morality and the movies: reading ethics through film

Introduction: Studying Philosophy Through Film 1. Submission to God's Will in A Man for All Seasons 2. Egoism and Utilitarianism in Casablanca 3. Legal Conventionalism in The Man Who Shot Liberty Valence 4. Kant's Man of Good Will and Hotel Rwanda 5. Moral Relativism, Perspectivism and Citizen Kane 6. Virtue Ethics and Ghost Dog 7. Freedom and Determinism in A Clockwork Orange 8. Sexual Morality and Kinsey 9. Assisted Suicide, Euthanasia and The Sea Inside 10. Capital Punishment and Compassion in Dead Man Walking 11. The morality and meaning of war in Full Metal Jacket 12. Autonomy and Abortion Rights in The Cider House Rules 13. Gun Control and Bowling for Columbine 14. Terrorism and Counterterrorism in Munich 15. Business Ethics and Wall Street 16. Affirmative Action, Diversity and Remember the Titans Conclusion: How Films can Elucidate Philosophies, and Vice Versa Further Reading Index.

UNDERGRADUATE NURSING STUDENTS' PERCEPTIONS ABOUT WEST AUSTRALIAN ADVANCE CARE PLANNING LEGISLATION

BackgroundIn an undergraduate nursing programme, discussions of what advanced care planning means to individuals resulted in some students questioning whether advanced care planning legislation in Western Australia goes far enough...

Circumcision, public health, genital autonomy and cultural rights

Circumcision is one of the oldest and most common surgical practices, being practised, for a range of medical, social and religious reasons, on up to 30% of males worldwide. At present, it is being...

The French Euthanasia Debate

In several countries, the debate about the legalization of active euthanasia and/or assisted suicide has been going on for thirty years. Although universal considerations are brought to bear on the issue (respect for autonomy, right to privacy, and medical integrity), the cultural context influences the way in which the discussion unfolds, both in the medical community and in society at large. Whether or not a ‘‘French exception’’ truly exists, the French are fond of invoking it, in education, politics, and culture, to mention just a few. Indeed, the term does provide us with some insight into certain aspects of the euthanasia debate, and more generally the treatment of end-of-life issues, that are specific to the French context. One contingent reason adds some urgency to this analysis: the French debate may well be drawing to a close in the near future. The current president, Franc xois Hollande, has promised to take up the issue and legalize ‘‘medical assistance to end one’s life with dignity in cases of incurable diseases causing unbearable and intractable physical and psychological suffering’’ (campaign pledge number 21). In order to make a more informed decision, he commissioned Dr. Didier Sicard, the former president of the National Consultative Ethics Committee (CCNE), to draft a report that was delivered to the president on December 18, 2012. In this article I describe the history and the intellectual underpinnings of the French debate. The 2005 Leonetti End-of-Life Act, named for Jean Leonetti, the conservative member of parliament who authored an earlier report on the issue, was a significant turning point in a debate that can now be divided into three main stages. I shall review the period prior to the 2005 End-of-Life Act, the main provisions of the law itself, and its consequences, both in medical practice and in the ethical debate. I draw two broad lessons from this brief history. First, the euthanasia debate in France is founded on principles of solidarity and justice rather than autonomy and individual rights. Second, the paternalistic tradition in medical care does not preclude the possibility of legalizing ‘‘active aid in dying’’ in the future, if only as an ethical ‘‘exception,’’ most notably in the form of assisted suicide, as recommended in the Sicard report. On the contrary, doctors’ responsibility toward their patients as an element of the social contract—what the French call ‘‘living together’’—might support the decision to hasten death in certain situations.

Policies for Handling Residual Newborn Blood Samples for Human Health Research

Newborn screening prevents thousands of premature illnesses and deaths every year and is one of the most successful public health programs in the US. Lately, there has been considerable controversy regarding the retention and use of residual newborn blood samples after their initial use in screening without obtaining parental informed consent. The concerns have focused on the confidentiality, privacy, and autonomy rights of parents to decide whether to permit the secondary use of these samples for research. This ongoing controversy regarding the preservation and use of dried blood samples in research has led to the destruction of several million archived samples and potentially more in the near future if no further actions are taken. Left out of the discussion, however, have been the benefits of making the residual blood …

A sociedade e a sexualidade da pessoa cega: preconceito, curiosidade, indiferença ou falta de conhecimento?

Este estudo teve por objetivo analisar como as pessoas cegas definem a percepção dos não cegos em relação a sua sexualidade. Participaram 11 (onze) pessoas com cegueira congênita de ambos os gêneros, com idades entre 22 e 54 anos e nível educacional do fundamental ao superior incompleto. Foram realizadas entrevistas semi estruturadas e sessões de grupo focal, com uso de gravador. As entrevistas e as sessões de grupo focal foram transcritas na integra e analisadas qualitativamente, à luz da hermenêutica dialética, buscando uma articulação entre os dados empíricos e os referenciais teóricos. Emergiram duas categorias: 1) A pessoa cega vista como assexuada; 2) Falta de conhecimento como gerador de curiosidade e indiferença. Os depoimentos e as sessões grupais evidenciaram: que as pessoas cegas percebem que a sociedade as considera como assexuadas destituídas de desejos sexuais e incapazes de gerir a própria vida; que a falta de conhecimento sobre a cegueira leva a sociedade a ver a sexualidade dos cegos como curiosidade, indiscrição, desconfiança ou simplesmente invisibilidade. As pessoas cegas reconhecem já ter ocorrido mudanças na sociedade no sentido da inclusão sob vários aspectos, mas avaliam que o preconceito em relação à sexualidade ainda é grande. Concluímos que as atitudes de discriminação e preconceito da sociedade, em relação à sexualidade das pessoas cegas, é resultado de uma construção histórica social de segregação das pessoas com deficiência. Apontamos para necessidade de construir novos paradigmas, para que possa proporcionar a essas pessoas, o respeito às diferenças, a autonomia, a dignidade e a seus direitos fundamentais.

Assimilation, Acculturation, and the Law: Solving a “Problem” Like Shar’ia

An unexpected development in the English legal system involves Muslim women’s use of legally binding Shar’ia councils to protect their autonomy, marital security, and property rights. Although scholars and political commentators alike have voiced concerns that Muslim women will be treated unfairly in these councils, there is some indication that women have become adept at navigating this plural legal landscape and that they have often managed to secure better outcomes from Shar’ia family law than from English courts. Over 80 Shar’ia tribunals have been established to issue legally binding decisions on divorce, child custody, inheritance, and other areas of family law. My paper investigates the ways in which Muslim women living in England navigate secular and religious systems of law, and will compare decisions made by English family courts to those made in Shar’ia councils. In so doing, I will suggest that Shar’ia law may be proliferating in England in part because it affords divorced Muslim women better outcomes than English family law.

Individuals with Intellectual Disabilities: A Review of the Literature on Decision-Making since the Convention on the Rights of People with Disabilities (CRPD)

To achieve the basic human right of autonomy, individuals, including those with intellectual disabilities (ID), must be able to practice decision-making, that is, to make their own decisions and communicate these decisions to others. In support of autonomous decision-making, Article 12 of the United Nations Convention on the Rights of People with Disabilities (CRPD) stresses the right of individuals with disabilities to legal capacity on an equal basis with others.1Supported decision-making approaches may aid individuals with ID in achieving this right. The question remains whether the enactment of the CRPD indeed is translated into opportunities for autonomous and supported decision-making among individuals with ID. In order to examine this question, a systematic review of bibliographic databases since 2008, when the CRPD came into force, was conducted in order to map the current state of decision-making among individuals with ID, and to identify areas in need of improvement. Twenty-seven manuscripts were reviewed, most focusing on decision-making within the fields of residential settings, health care, and sexuality-related decisions. This review showed that difficulties in decision-making in the area of ID remain during the early years after the CRPD entered into effect. These difficulties are related to the individuals with ID themselves, to their caregivers, and to the service system. No working models on supported decision-making for this population were found. The discussion highlights the importance of developing decision-making skills among people with ID, allowing them opportunities for decision-making, training professionals in supported decision-making, and fostering the philosophy of person-centered planning.