scholarly journals Le droit de refuser un traitement psychiatrique au Québec

2005 ◽  
Vol 26 (4) ◽  
pp. 807-839 ◽  
Author(s):  
Daniel Gervais
Keyword(s):  
Informed Consent ◽  
Psychiatric Patients ◽  
Civil Law ◽  
Human Person ◽  
Civil Code ◽  
Self Determination ◽  
Constitutional Rights ◽  
Canadian Charter ◽  
The Public ◽  
Parens Patriae

There are various types of incapacity in the civil law of Québec. The provisions of the Civil Code concerning the interdiction of incapable persons are now supplemented by various statutes. In all cases, a curator — and generally the public curator — is appointed to accept or refuse treatment for an incapable person. Except in cases of serious emergency, it is clearly established that any treatment, whether medical or psychiatric, must be preceeded by the patient's informed consent. While some recourses already exist to protect the rights of an incapable patient for whom a curator has been appointed, this is not the case for psychiatric patients who are of legal age and legally competent, but who refuse treatment. In these cases, it is suggested that the decisions of Québec courts that have recognized a « defacto incapacity » and, consequently, forcible treatment on the basis of the « parens patriae » doctrine, may be ill-founded. This opinion is based on the application of the principles of self-determination and the inviolability of the human person, and by establishing a parallel with constitutional rights recognized by American courts which are now echoed in the new Canadian Charter of Rights. The author suggests that all recourses involving refusal of treatment be referred to a centralized administrative tribunal, in the light of the reform of the Civil Code.

Knee and Hip TEP Surgery: The Surgeonsʼ Obligation to Give Information

2018 ◽  
Vol 157 (04) ◽  
pp. 386-391 ◽  
Author(s):  
Tobias Thielmann ◽  
Artem Tuzhikov
Keyword(s):  
Informed Consent ◽  
Medical School ◽  
Relevant Information ◽  
Civil Code ◽  
Self Determination ◽  
Physical Integrity ◽  
Correct Procedure

AbstractThe German Civil Code (BGB) establishes in § 630e BGB formal and content-related requirements to provide the patient with a solid fundament of information. This is necessary for a valid informed consent. Without it, the physician is liable for the violation of the patientsʼ physical integrity and his right to self-determination. According to German jurisprudence, this shall even apply when the treatment was conducted duly and without any complications. Therefore, it is astonishing that the correct way of giving information is neither taught in medical school nor in the residency. In practice, supervisors expect that young assistant doctors will be familiar with the correct procedure. As a result, many mistakes are made, even though these are easy to avoid. In this article, we point out all relevant information and the correct way of presenting this, using the example of hip/knee TEP operations.

scholarly journals On the promulgation of the new Hungarian Civil code

2011 ◽  
pp. 293-311
Author(s):  
Atila Dudas
Keyword(s):  
Subject Matter ◽  
Full Text ◽  
Turning Point ◽  
Civil Law ◽  
Civil Code ◽  
The Public ◽  
Draft Version ◽  
Legislative Procedure ◽  
The Government

Apart from previous partial codifications and system-laws, the first civil code in Hungary was promulgated in 1959. After the beginning of transition in 1989, despite the great number of amendments to the existing Civil code, to issue of recodification of civil law in Hungary became inevitable. This process began in 1998 when the Government appointed a committee with most renowned Hungarian legal scholars as members, which had the task to prepare a draft version of a new civil code. The committee has worked devotedly on the text of the draft for nearly a decade. In 2003 it published the so-called Concept and Syllabus of the new civil code in order to enable the public to get knowledge of the planned subject matter of the draft and, what is even more important, enable it to contribute to the quality of the draft by expressing critical remarks and suggestions. The committee, having taken into account the opinion of the public, continued its work on the draft and published the first full text of the draft in 2006. 2007 marked a turning point in the codification procedure when, to general astonishment, the Ministry of Justice took over the task of drafting a civil code, by which the drafting committee's mandate on the preparation of the new civil code ceased to exist, before it even could have had a chance to process the remarks the public had had on the 2006 draft. The Ministry published its first version of the draft in 2007, and a second one in 2008. In the same year, the committee, whose mandate has ceased to exist in 2007, published its, by then unofficial, version of the draft in order to make the achievements of its nearly decade-long work available to public in authentic form. The Ministry's second draft was adopted in 2008 by the Government and submitted to the Parliament as a bill to be enacted. The Parliament, after it had been in legislative procedure for a year or so, finally adopted the new Civil code of Hungary, though with a very slim majority. However, the President, using his constitutional powers, denied promulgating it, just as the subsequently enacted Law on the Implementation and Entering into Force of the new Civil Code. The President, who is, by the way, one of the most prominent civil law scholars in Hungary, expressed his deepest doubts in respect of the enactment of the new Civil code, both in terms of its substantial flaws and the manner in which the legislative draft and bill have been prepared. Using his right to suspensive veto he could not bring to naught the new Civil code, but he succeeded in postponing its promulgation and entry into force. The aim of this paper is to block in the tempestuous, decade-long work on the text of the new Civil code and its content in short, with special regard to the reasons for which the President denied to promulgate it.

scholarly journals O OBOWIĄZYWANIU ZASADY KONTRADYKTORYJNOŚCI W POSTĘPOWANIU NIEPROCESOWYM: PRZYCZYNEK DO DYSKUSJI

2016 ◽  
Vol 16 (3) ◽  
pp. 137
Author(s):  
Joanna Misztal-Konecka
Keyword(s):  
Public Interest ◽  
Civil Law ◽  
Civil Code ◽  
The Public ◽  
Procedural Law ◽  
Adversary System ◽  
Inquisitorial System

The Adversarial Principle in Non-litigious Proceedings: a Contribution to the Discussion Summary The adversarial principle has been applicable in Polish non-litigious proceedings since 1964, when the provisions for litigious and non-litigious proceedings in Polish civil law were integrated in one civil code, and later when its procedural law was fundamentally revised and amended. Prior to this change, the applicable provisions were defined in the 1945 Code for non-litigious proceedings, which did not admit the adversary system, viz. the principle that the parties to proceedings collect evidence and produce witnesses, while the court merely assists and supervises. There are only two situations in which under current Polish civil law the inquisitorial system may supersede the adversary ststem. The two exceptions are: 1) when ex officio proceedings may be initiated on the grounds of a legislative act; and 2) when it is in the public interest to initiate an ex officio inquiry.

scholarly journals Legal Consequences of The Absense of Informed Consent in Therapeutic Transactions

2020 ◽  
pp. 1-17
Author(s):  
Vicia Sacharissa
Keyword(s):  
Data Analysis ◽  
Informed Consent ◽  
Research Method ◽  
Qualitative Data ◽  
Civil Law ◽  
Self Determination ◽  
Legal Research ◽  
Library Research ◽  
The Right ◽  
Legal Consequences

A person's right to their own body is one of the human rights protected under the right to self-determination,1 and this protection also applies to patients seeking treatments. The process of giving information by the doctor, which is then followed with the consent to medical action by patient, is known as informed consent. In Indonesia, the protection of such right is contained in various laws and regulations. This is a descriptive legal research, with normative-judicial or library research method and qualitative data analysis. The discussion covers topics regarding therapeutic transaction as a form of agreement, the presence of informed consent in therapeutic transactions, and the consequence of the absence of informed consent from the perspective of civil law. It is also supplemented with case decision study on Case Decision No. 3203 K/Pdt/2017 which proves that the lack of informed consent is a legitimate ground for a lawsuit.

scholarly journals Public Promise of a Reward as a Legal Fact in Civil Law

JURIST ◽  
2020 ◽  
Vol 11 ◽  
pp. 7-13
Author(s):  
Anatoliy Ya. Ryzhenkov ◽  
Keyword(s):  
Russian Federation ◽  
Civil Law ◽  
Civil Code ◽  
The Public ◽  
The Russian Federation ◽  
Legal Fact

The article is devoted to the problem of public promise as a legal fact. The institution of public promise of awards in the structure of the current Russian civil legislation occupies a rather uncertain position. It is shown that the mechanism described in article 1055 of the civil code of the Russian Federation in relation to the public promise of a reward is quite similar to the procedure for concluding a contract. The public promise of a reward, as presented in clause 1 of article 1055, contains all the essential terms of the contract, including its subject (action), term of performance, and price (amount of the reward). Thus, the performance of the action specified in the announcement is an acceptance, the peculiarity of which is that the obligation to pay the reward arises regardless of whether the corresponding action was performed in connection with the announcement made or independently of it (clause 4 of article 1055).

scholarly journals The Current State of Recodification Works of Slovak Private Law and Its Perspectives

2021 ◽  
Vol 2 (1) ◽  
pp. 83-92
Author(s):  
Denisa Dulaková Jakúbeková
Keyword(s):  
Slovak Republic ◽  
Civil Law ◽  
Legal Regulation ◽  
Civil Code ◽  
Time Constraints ◽  
Private Law ◽  
The Public ◽  
Current State ◽  
Commercial Code ◽  
The Given

The article discusses the current state of the ongoing process of private law recodification in the Slovak Republic. Despite the efforts promised by every new government, to this day, none of them have achieved a recodification of civil law that would ultimately result in unambiguous treatment of, in particular, the so-called questions of values, nor have any of them seen through the creation of a codex, which has long been required. The need for recodification first became apparent even before the November 1989 Revolution. The focus of the expert public post-revolution was on filling the legal vacuum that came about through the abolition of the Economic Code and the Code of International Trade and on substituting them with a new and equivalent legal regulation. Due to time constraints and the urgent need for a solution to the given situation, the country failed to adopt a single universal regulation for private law; instead, the so-called major amendment of the previous Civil Code was adopted. This state has since prevailed; thus, Slovakia’s legal system is still subject to a Civil Code from 1964, amended on several occasions, as well as the Commercial Code from 1991. This is despite the numerous attempts to recodify private law, the last attempt having been introduced to the public at the end of 2018. The form of this reform was, however, surprising. Slovakia saw a change in governments in 2020, and the new government has, to date, declared other priorities in the domain of justice. It is, therefore, difficult to say whether the new government will adopt the ambition to recodify private law and, if so, to what extent it will succeed in completing this goal.

Exception from informed consent for emergency research: The experience of the public access defibrillation trial

2002 ◽  
Author(s):  
Vincent N. Mosseso ◽  
◽  
Lawrence H. Brown ◽  
Shannon W. Stephens ◽  
Tom P. Aufderheide ◽  
...  
Keyword(s):  
Informed Consent ◽  
Public Access ◽  
Emergency Research ◽  
The Public ◽  
Public Access Defibrillation

scholarly journals Privacy in Public: A Democratic Defense

2020 ◽  
Vol 7 (1) ◽  
pp. 73-96
Author(s):  
Titus Stahl
Keyword(s):  
Public Sphere ◽  
Privacy Protection ◽  
Self Determination ◽  
Democratic Legitimacy ◽  
Political Speech ◽  
The Public ◽  
The Public Sphere

AbstractTraditional arguments for privacy in public suggest that intentionally public activities, such as political speech, do not deserve privacy protection. In this article, I develop a new argument for the view that surveillance of intentionally public activities should be limited to protect the specific good that this context provides, namely democratic legitimacy. Combining insights from Helen Nissenbaum’s contextualism and Jürgen Habermas’s theory of the public sphere, I argue that strategic surveillance of the public sphere can undermine the capacity of citizens to freely deliberate in public and therefore conflicts with democratic self-determination.

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