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Reflections

Non-consensual testing after needlestick injury: A legal and ethical drama

By Charles Foster and Jonathan Herring

Scene 1: An Intensive Care Unit

Like many patients in ICU, X is incapacitous. He also needs a lot of care. Much of that care involves needles. Late at night, tired and harassed, Nurse Y is trying to give X an intravenous injection. As happens very commonly, she sticks herself with the needle.

Nurse Y is worried sick. Perhaps she will catch HIV, hepatitis, or some other serious blood-borne infection? She goes tearfully to the Consultant in charge.

‘Don’t worry’, he says. ‘We’ll start you on the regular post-exposure prophylaxis. But to be even safer, we’ll test some of X’s blood for the common infections. I doubt he’ll be positive, but if he is, we’ll start you straight away on the necessary treatment. We needn’t take any more blood: there are plenty of samples already available.’

A sample of blood is submitted for analysis. Read More »Non-consensual testing after needlestick injury: A legal and ethical drama

Global Positioning Systems and Dementia: An Ethical Analysis

Sussex police have announced a scheme to fit people suffering from dementia with GPS tracking systems. These small devices will allow police to locate the wearer, and also allow the wearer to reach a 24 hour helpline by pressing a small button on the device. It has been claimed that these devices will save police time and resources, as well as reducing both the potential risk to dementia patients who go missing, and the anxiety that relatives of the missing person will feel when their loved one goes missing.

However, some parties have decried the introduction of this scheme as barbaric and inhumane. For example, Neil Duncan-Jordan, the national officer of the National Pensioners’ Convention, claimed that the scheme serves to stigmatise sufferers of dementia by equating them with people who have committed a criminal act.Read More »Global Positioning Systems and Dementia: An Ethical Analysis

Strict-ish liability? An experiment in the law as algorithm

Some researchers in the US recently conducted an ‘experiment in the law as algorithm’. (One of the researchers involved with the project was interviewed by Ars Technia, here.) At first glance, this seems like quite a simple undertaking for someone with knowledge of a particular law and mathematical proficiency: laws are clearly defined rules, which can be broken in clearly defined ways. This is most true for strict liability offences, which require no proof of a mental element of the offence (the mens rea). An individual can commit a strict liability offence even if she had no knowledge that her act was criminal and had no intention to commit the crime. All that is required under strict liability statutes is that the act itself (the actus reus) is voluntary. Essentially: if you did it, you’re liable – it doesn’t matter why or how. So, for strict liability offences such as speeding it would seem straightforward enough to create an algorithm that could compare actual driving speed with the legal speed limit, and adjudicate liability accordingly.

This possibility of law as algorithm is what the US researchers aimed to test out with their experiment. They imagined the future possibility of automated law enforcement, especially for simple laws like those governing driving. To conduct their experiment, the researchers assigned a group of 52 programmers the task of automating the enforcement of driving speed limits. A late-model vehicle was equipped with a sensor that collected actual vehicle speed over an hour-long commute. The programmers (without collaboration) each wrote a program that computed the number of speed limit violations and issued mock traffic tickets.Read More »Strict-ish liability? An experiment in the law as algorithm

What happens when you die

I have just watched someone die. Just one person. But a whole ecosystem has been destroyed. Everyone’s roots wind round everyone else’s. Rip up one person, and everyone else is compromised, whether they know it or not. This is true, too, for everything that is done to anyone. Death just points up, unavoidably, what is always the case.

This is trite. But it finds little place in bioethical or medico-legal talk. There, a human is a discrete bio-economic unit, and there’s a convention that one can speak meaningfully about its elimination without real reference to other units.

In some medico-legal contexts this is perhaps inevitable. There have to be some limits on doctors’ liability. Hence some notion of the doctor-patient relationship is probably inescapable, and the notion requires an artificially atomistic model of a patient.

But ethics can and should do better.Read More »What happens when you die

Art and Moral Taint

It was reported yesterday that the Tate gallery has decided to remove prints created by the artist Graham Ovenden following his conviction for child sex offences (on Tuesday 2nd April). Ovenden’s conviction itself raises difficult moral questions which I shall not address here. Ovenden is (or at least was) a celebrated portrait artist; he admitted to taking pictures of and painting nude children in the course of creating his portraiture, claiming that, in doing so, he was aiming to capture children in what he termed their “state of grace”.  Although he vigorously denied allegations of paedophilia over the course of the trial, Ovenden was found guilty of six counts of indecency and one count of indecent assault.

There may well be room for debate about whether Ovenden is a paedophile or just a harmless, albeit esoteric, artist. However, I shall not address this question here; I shall assume throughout (rightly or wrongly) that the court is warranted in describing Ovenden as a paedophile. Rather, I am interested in the Tate gallery’s response to the conviction, and more generally, the questions about the nature of art to which it gives rise.Read More »Art and Moral Taint

Facebook: You are your ‘Likes’

By Charles Foster

When you click ‘Like’ on Facebook, you’re giving away a lot more than you might think. Your ‘Likes’ can be assembled by an algorithm into a terrifyingly accurate portrait.

Here are the chances of an accurate prediction: Single v in a relationship: 67%; Parents still together when you were 21: 60%; Cigarette smoking: 73%; Alcohol drinking: 70%; Drug-using: 65%; Caucasian v African American: 95%; Christianity v Islam: 82%; Democrat v Republican: 85%; Male homosexuality: 88%; Female homosexuality: 75%; Gender: 93%.Read More »Facebook: You are your ‘Likes’

Why advertising gay conversion therapy is like advertising make-up

by Rebecca Roache

Various news sources—including The Huffington Post, Gay Star News, and the London Evening Standard—are reporting a High Court case in which a campaigner for gay conversion therapy is fighting Transport for London (TfL) over a ban on its bus adverts that suggest that homosexuality can be ‘cured’.

Dr Mike Davidson is head of Core Issues Trust which, according to its website, is ‘a non-profit Christian ministry supporting men and women with homosexual issues who voluntarily seek change in sexual preference and expression’. Davidson, who is married with children, insists that his own gay feelings were removed by therapy. He told The Huffington Post that he had homosexual feelings ‘from the moment [he] opened [his] eyes’. Even so, he believes that ‘gay’ is a ‘late twentieth century political construction’ that people can reject. His adverts read, ‘Not gay! Ex-gay, post-gay and proud. Get over it!’—a response to similar posters by lesbian, gay and bisexual charity Stonewall which read, ‘Some people are gay. Get over it!’ Davidson’s adverts have been deemed ‘offensive to gays’ by London Mayor Boris Johnson, who is also head of TfL.Read More »Why advertising gay conversion therapy is like advertising make-up

On being private in public

We all know that we are under CCTV surveillance on many occasions each day, particularly when we are in public places. For the most part we accept that being – or potentially being – watched in public places is a reasonable price to pay for the security that 24-hour surveillance offers. However, we also have expectations about what is done with CCTV footage, when, and by whom. A recent discussion with a friend threw up some interesting questions about the nature of these expectations and their reasonableness.

My friend works in a bar where, unsurprisingly, there are several CCTV cameras. Everyone knows where these cameras are and that they are permanently in operation – there is not supposed to be any secrecy. Whilst the primary purpose of the cameras is to promote security, a member of the management team has begun to use them in a way that could be seen as ethically problematic: she logs on to view the footage in real-time, remotely, at her home. In addition to watching the footage, the manager has also addressed points of staff discipline based on what she sees. Perhaps particularly troubling is that she has commented on the way a member of staff behaved when no one was around – when the member of staff thought that she was ‘alone’.Read More »On being private in public

Enlightened surveillance?

New York City contemplates using aerial drones for surveillance purposes, while North Korea buys thousands of cameras to spy on its impoverished population. Britain has so many cameras they cease being newsworthy. The stories multiply – it is trivial to note we are moving towards a surveillance society.

In an earlier post, I suggested surrendering on surveillance might be the least bad option – of all likely civil liberty encroachments,  this seemed the less damaging and hardest to resist. But that’s an overly defensive way of phrasing it – if ubiquitous surveillance and lack of privacy are the trends of the future, we shouldn’t just begrudgingly accept them, but demand that society gets the most possible out of them. In this post, I’m not going to suggest how to achieve enlightened surveillance (a 360 degree surveillance would be a small start, for instance), but just outline some of the positive good we could get from it. We all know the negatives; but what good could come from corporations, governments and neighbours being able to peer continually into your bedroom (and efficiently process that data)? In the ideal case, how could we make it work for us?Read More »Enlightened surveillance?

Abortion and the cognitively impaired mother

It will be interesting to watch the reception of a recent Court of Protection case, as yet unreported, in which a woman with profound learning difficulties was found to have capacity to decide not to terminate her pregnancy.

As so often, the case decided nothing new. But it is a timely reminder of the trite but often overlooked principle that capacity is not an all or nothing thing. The question: ‘Does she have capacity?’ is always dangerously incomplete. The correct question is always ‘Does she have capacity to decide X?’

There was no doubt that she did not have capacity to manage many aspects of her affairs. She was in the bottom 1% of the population so far as intellectual function was concerned. Deputies were appropriately appointed. But, so far as the continuation of her pregnancy was concerned, so what?

It was decided as a matter of fact that she had capacity to decide whether or not to continue with, or to terminate, the pregnancy. And that meant that the Court of Protection had no jurisdiction to decide the matter. No best interests determination could lawfully be made.Read More »Abortion and the cognitively impaired mother