Alors que l'application des règles du droit de la concurrence dans le secteur sanitaire est un phénomène croissant, il est pertinent de s'interroger sur son éventuelle remise en cause. L'étude de l'entrecroisement du droit de la concurrence et du droit de la santé, en effet, n'a pas encore fait l'objet d'une analyse d'ensemble. Celle-ci fait apparaître que l'entrelacement de principe des deux disciplines provient de ce qu'il est, à la fois, possible et favorisé. Le droit de la santé ne crée pas d'obstacles à l'emprise du droit de la concurrence, et participe même de s a mise en œuvre, en créant des mécanismes susceptibles de porter atteinte au processus concurrentiel. Le recours aux normes concurrentielles, par ailleurs, semble opportun. Bénéfique, l'application des règles de concurrence renforce les règles du droit de la santé. Bien qu'instrumentalisée par les normes sanitaires, la concurrence n'est pas suffisamment protégée. L'application des règles concurrentielles, alors, apparaît nécessaire. Mais les rapports qu'entretiennent les deux disciplines montrent également des aspects négatifs. Si le droit de la concurrence offre une protection indirecte aux «consommateurs de soins», ses mécanismes, exclusivement orientés vers l'intérêt général concurrentiel, ne permettent pas, en réalité, d'accueillir directement les finalités sanitaires. S'élèvent, en outre, des conflits entre les deux corps de règles, conduisant à leur neutralisation et à leur altération mutuelles. Aussi convient-il de rechercher un moyen d'améliorer leur articulation. C'est donc à un recours renouvelé au droit de la concurrence qu'il s'agit finalement de songer. / As the Judicial Enforcement of Competition Law in health services is increasing, it seems relevant to wonder whether this phenomenon could somehow be questioned. Indeed, Competition Law and Health Law have not yet been investigated together through an overall study – though the intertwining of these disciplines is not only possible, but also visibly encouraged. In fact, far from thwarting the influence of Competition, Health Law even participates in its enforcement, triggering mechanisms likely to provoke it. Besides, the application of Competition Rules is advisable whenever it strengthens Health Rules. Sanitary norms have nonetheless used Competition without it being satisfactorily protected. Consequently, the application of Competition Rules appears necessary. The relation between disciplines has also known negative effects : even though Competition Law offers indirect protection to “health consumers”, its mechanisms do not, in actuality, take sanitary objectives into account. Conflicts between the disciplines compel them to alter one another, leading to their mutual neutralization. Consequently, the interaction between Competition and Health norms needs to be improved. Limited or residual rights of appeal could be the key under Competition Law.

Among the features that distinguish British Columbia’s mental health laws from those in other provinces in Canada is that they accord a high level of discretion to psychiatrists to impose involuntary treatment on patients who have the mental capacity to withhold consent to this treatment. In this research I examine the nature of the medico-legal regime in British Columbia that permits this coercive treatment, describe how it came into existence, and explore how it works in the lives of specific patients. Michel Foucault’s philosophy informs the historical, theoretical, and empirical dimensions of this research and provides a framework for a normative critique of British Columbia’s mental health law regime. In establishing the background to British Columbia’s current mental health laws, I give a historical account of the social forces that produced this province’s laws, which reflect a strong orientation toward neurobiological psychiatric ways of understanding and treating people diagnosed as having mental disorders. Foucault’s writings on governmentality, discourse and human agency provide the theoretical basis in this research for understanding the operation of psychiatric power in British Columbia. These writings also inform the methodology for the analysis of institutional discourse, which I use in the empirical component of this research. In order to conduct an empirical investigation of this British Columbia’s current mental health law regime, I gathered data from transcripts of three administrative tribunal hearings before the Mental Health Review Board of British Columbia and two other decisions from hearings before that board for which transcripts were not available. In these hearings, patients who had been subjected to involuntary psychiatric treatment orders under mental health legislation sought release from detention by challenging the psychiatrists who had issued the orders. The Review Board is legislatively empowered to affirm these orders or discharge the patients from involuntary psychiatric treatment. I use critical discourse analysis to analyze discursive exchanges between patients, psychiatrists and other participants at the hearings, exchanges that disclose power relations between the participants and have significant effects in shaping the outcomes for the patients. My critical discourse analysis of the transcript data and Review Board decisions discloses discriminatory and prejudicial psychiatric practices shaped by British Columbia’s mental health laws. This research lays the groundwork for a normative framework, based on Foucault’s writings on ethics and relational agency, for understanding patients’ rights to consensual medical treatment that overcomes problems associated with traditional liberal conceptions of individual rights and is a philosophically coherent basis for making recommendations to change British Columbia’s mental health law regime. / Graduate

The thesis deals with an issue of legal aspects of stem cell research with a special emphasis on the use of embryonic stem cells which is connected with the most of ethical and legislative controversies. At first, there are presented biological and ethical aspects of the topic necessary for its understanding. The thesis further analyses related legislation relevant for the research conducted in the Czech Republic. With respect to international law, the thesis focuses mainly on the Council of Europe system of protection of human rights. Then, the thesis presents regulation in primary and secondary European Union law. In the two final chapters, there is presented Czech regulation in the constitutional order (in the Charter of Fundamental Rights and Freedoms) and laws, which is then viewed in European context as moderately permissive and relatively well prepared. Its greatest weakness is the lack of discussion about the topic in the Czech public.

In many jurisdictions, including England and Wales, psychopaths are unable to succeed with an insanity defence. This has been influenced by a legal view of psychopathy as a condition characterised by a reduced ability to comply with the law, which is otherwise fully understood. Evidence from cognitive neuroscience, however, may potentially challenge this traditional legal conception of psychopathy. In this regard it has already been suggested, based partly on scientific evidence, that it may be appropriate for at least some psychopaths to succeed with an insanity defence where they can be shown to lack moral competence. In this thesis, I critically examine this possibility. I first examine the insanity defence in English law, showing how psychopaths have effectively been excluded from the defence by judicial interpretation of the insanity defence criteria. Consequently, if psychopaths lacking moral competence were to be identified, reform (or reinterpretation) of the defence would be required. I then present philosophical arguments in favour of the case that some psychopaths should gain access to an insanity defence, before clarifying which psychopaths ought potentially to succeed, and which criminal offences ought potentially to be relevant, for the purposes of a reformed or reinterpreted defence. In order to clarify which psychopaths are relevant psychopaths (RPs), it is necessary to go beyond existing scientific evidence. It is argued, based on emerging neuroscientific findings and current research techniques, that while it is not currently possible to identify RPs, it may be possible in the future. Even if it this becomes possible, however, the philosophical case for access to an insanity defence remains deeply problematic. Although RPs may lack moral competence, for example, they may nevertheless possess other capacities relevant to criminal responsibility. After closer examination, it is argued that the case for access to an insanity defence may be best viewed as a case for mitigation rather than exculpation. I conclude by considering some of the implications of this analysis in an English legal context, should it become possible to identify RPs. Of particular relevance is the possibility that RPs may be at high risk of causing serious harm to others. This illuminates important possible relationships between responsibility and risk, and diagnostic advancements and risk assessment, in this area. There are also broader implications for the management of psychopaths in the future, given that greater scientific understanding may lead to enhanced predictive abilities that could tempt policymakers towards more radical strategies. This thesis contributes to an ongoing debate about the role that cognitive neuroscience may play in decisions about the criminal responsibility of psychopaths. My main contribution is to clarify how psychopaths lacking moral competence may be identified in the future, and relate this neuroscientific discourse to arguments for providing these persons with access to an insanity defence. It is argued, however, by reference to legal, policy, scientific and philosophical considerations, that the risk such persons would pose, rather than their capacity for criminal responsibility per se, may have significant legal and policy implications in England and Wales in the future.

Located squarely within the experiences of legal aid lawyers, with particular emphasis on the challenges they face in delivering effective representation, this dissertation, designed as an institutional ethnography, problematizes the provisions and practices related to involuntary admission in psychiatric facilities in Poland, as well as the organization of legal aid representation in involuntary admission cases. Through detailed accounts of paramedics, psychiatrists, judges, and legal aid lawyers’ work, connected and coordinated by legal and administrative texts, I demonstrate how the disjuncture between institutional regimes and lawyers’ experiences is institutionally produced by the set of legal, professional, financial, and social relations that organize both the involuntary admission procedure and the system of legal aid in Poland. While I start my exploration with legal aid lawyers’ embodied experiences of performing their work, accounting for how that work is organized and coordinated in local sites, this dissertation moves beyond a solo ethnographic description in seeking to discover relations, especially the social and legal relations mediated by the texts that govern these local experiences and practices. I trace the material and discursive practices that operate in key sites to organize the legal aid system, involuntary commitment procedures, and judicial decision-making. In Poland, the overwhelming majority of involuntary commitment cases are taken on by legal aid lawyers, whose work conduct is bound by both the law and a code of professional ethics. In this dissertation, I advance my thesis by closely reviewing the legal context of involuntary commitment; the material practices associated with legal aid lawyers, such as appointment, client access, and remuneration; the processes through which psychiatric documents are created and attached to admittees; and the role psychiatrist-generated texts play in court. I argue that within the context of involuntary admission, lawyering is organized in such a way that legal aid attorneys are unable to perform at their utmost, in a way that would most benefit their clients. Moreover, through my research I show that―despite perhaps their best intentions―legal aid lawyers not only actively participate in the practices that circumscribe the space for their legal advocacy for admittees, but also reproduce the very discourses and practices that objectify people during involuntary admission procedures to psychiatric facilities in Poland. / Graduate

Indiana University-Purdue University Indianapolis (IUPUI) / The United States is experiencing a severe opioid use epidemic with more than 2 million people currently suffering from opioid use disorder (OUD), of which, over 1 million need treatment. Opioid treatment programs (OTPs) are evidence-based modality providing comprehensive care to individuals experiencing OUD. OTPs provide counseling, medical assessments, and medication-assisted treatment, which decrease the use of illicit opioids, reduce associated deaths, criminality, and improve the psychosocial wellbeing of its patients. However, OTPs have been extensively regulated at the federal, state, and local levels with little consistency and varying degrees of enforcement across the country, particularly at the state level, creating a “regulatory fog”. This complex regulatory environment has made it challenging to study new or changing regulations and their impact on health outcomes. In order to better understand the variation of OTP regulation, this dissertation: (1) employs public health law research methods to map the entire landscape of state-level regulation of OTPs and associated state characteristics in effect on January 1, 2017; (2) examine how state-level regulations affect the delivery of care from the perspective of OTP administrators through key-information interviews; and (3) examines associations between regulatory burden and related health outcomes of individuals experiencing OUD, by state.

No / This chapter will discuss key issues and challenges facing contemporary European environmental health law and policy. It will identify relevant legal and policy regimes as well as key drivers for promotion and protection of environmental health in Europe. It will examine the strengths and limits of evolving European legal and policy responses to the promotion and protection of environmental health. It explores prospects for optimizing health protection in Europe. In this connection, the chapter will propose regulatory options to re-invigorate the current legal and policy regimes governing environmental health at the European and domestic levels. The chapter will conclude by proposing pathways to mapping the future of environmental health law in Europe.

The Patient Protection and Affordable Care Act (ACA) aimed to increase accessibility to medical resources for those previously uninsured. Certainly, the ACA has expanded insurance to millions of Americans, however, the evidence and discourse surrounding health accessibility calls into question why, despite the growth of insured Americans, the increase in health insurance coverage under the ACA has not lead to greater accessibility for low income minorities. I propose that disparities in preventive care, the emergency room, and primary care provider services stand as barriers for low income minorities. Insurance coverage does not necessarily equate to greater accessibility if individuals do not have the means to utilize those resources.

Trata-se de pesquisa quali-quantitativa que envolve observação participante, análise de documentos e realização de entrevistas com usuários de um hospital do SUS e um particular. O foco da investigação é o consentimento informado na assistência à saúde, entendido como o processo decisório compartilhado no qual há troca de informações, impressões e valores entre os usuários do serviço e os profissionais de saúde. Objetivou-se verificar sua prática no sistema de saúde brasileiro, com recorte para a área da oncologia. Para a análise estatística, as variáveis categóricas foram avaliadas por meio do teste exato de Fisher e, as variáveis numéricas, comparadas utilizando o teste t, com nível de significância de 5 por cento . Quanto aos termos de consentimento, os testes de Flesch e Flesch-Kincaid apontaram legibilidade inadequada segundo padrões internacionais, bem como diante dos níveis educacionais de fato encontrados nos hospitais. Mais de 70 por cento dos entrevistados do SUS não tinham escolaridade compatível com a exigida para a leitura dos documentos. Apesar de a quase totalidade dos usuários dos hospitais ter relatado satisfação com as informações recebidas sobre o procedimento que iria realizar, apenas 58 por cento souberam elencar ao menos um risco relacionado ao mesmo. Conforme o esperado, houve associação entre nível educacional e renda dos usuários com a compreensão de riscos dos procedimentos. Mesmo que não se tenha notícia da variável renda ter sido considerada em estudos anteriores, por meio de regressão logística múltipla, observou-se que teve peso muito maior do que a escolaridade em predizer a chance de a pessoa citar um dos riscos do procedimento, embora ambos os fatores sejam preditores independentes. Não houve relação entre a compreensão de riscos e se o hospital era SUS ou particular, e nem em relação ao tempo de tratamento. Diferentemente de pesquisas em outros países, tampouco houve associação entre nível educacional e leitura do termo de consentimento. Entretanto, quando foi o médico, dentre os profissionais de saúde, quem entregou o termo, este foi mais lido pelos usuários. Houve associação entre o usuário estar no hospital particular e acreditar que o termo de consentimento serve para proteger os médicos, em contraposição a servir à sua própria garantia. Pela análise qualitativa, os usuários do SUS tiveram maior habilidade que o esperado na compreensão do diagnóstico e histórico da doença. Acredita-se que o bom acolhimento conseguiu superar em parte o nível educacional e de renda que foram detectados como barreiras ao entendimento das informações, de forma que a humanização da saúde parece impactar positivamente na compreensão das informações pelos usuários. Contudo, em ambos os hospitais, apesar de conseguirem relatar bem os procedimentos pretéritos e futuros, muitos usuários pareciam não saber se contextualizar em seus tratamentos e nem entender os motivos e objetivos dos procedimentos realizados. Em geral, tanto usuários como profissionais mostraram não entender o que é o consentimento informado e a diferença deste para os termos de consentimento, comumente tratados como mera burocracia jurídica. Tudo isso pode estar prejudicando os objetivos do consentimento informado e são questões que necessitam ser repensadas no sistema de saúde / This qualitative-quantitative research includes participant observation, document analysis, and interviews with users from both SUS and private hospitals. It focuses the informed consent in the health care, understood as the shared decisionmaking process in which information, opinions, and values are exchanged between the service users and their health professionals. The goal is to analyze the practice of the informed consent within the Brazilian Health Systems oncology field. The evaluations of categorical variables associations used the Fisher\'s exact test, while the numerical variables were compared through a t-test, at the 5 per cent significance level. Through Flesch and Flesch-Kincaid methods, it was found that the hospitals informed consent terms are of inadequate readability according to international standards, and also inappropriate compared to the actual users literacy level: more than 70 per cent of the SUS interviewees do not match the required literacy standard for comprehending the documents. In addition, although almost all users reported satisfaction with the information they received about their procedure, only 58 per cent were able to name at least one related risk. As expected, there was an association between the educational and income levels of the participants and their ability to understand the risks of a medical procedure. It is noteworthy that previous studies, both national and foreign, do not seem to have considered income level as a variable. Although both factors were independent predictors, multiple logistic regressions showed that income level had a greater weight than educational level in predicting a person\'s chance of citing one of the procedural risks. Additionally, no matter the timing of the treatment, there was no relation between knowledge of risks and whether the hospital is SUS or private. Unlike results found in other countries, there appears to be no association between educational level and the reading of consent terms. Nevertheless, when the doctor is the health professional who applies the term, it is read more often by the users. The research demonstrated that there was an association between the user being in the private hospital and believing that the consent term exists to protect the rights of the doctor instead of their rights as health service users. Through qualitative analysis, this study found that the SUS hospital users had greater ability than expected to understand disease diagnosis and history. The hospitals effective patient care appears to have partly overcome the educational barrier that often prevents patients from understanding diagnostic and medical procedures information, so that humanization of healthcare seems to have a positive impact on users understanding of information. Despite of both hospitals users satisfactorily report past and future procedures, several of them appear not to contextualize their treatments either understand the performed procedures reasons and objectives. In general, users and health professionals in both hospitals do not seem to understand the informed consent concept, neither the difference between informed consent and informed consent terms, generally seen as mere legal bureaucracy. All of these issues may jeopardize the goals of informed consent, if they are not addressed properly at the health care

An analysis of the evolution of the Commerce Clause, the Justices on the Supreme Court, and the arguments presented in this case indicate that the minimum coverage provision of the Patient Protection and Affordable Care Act will be struck down. Although the Court will likely be split 5 to 4 along ideological lines, each of the justices will have a unique rationale behind their decision. Chief Justice Roberts, Justice Scalia, and Justice Kennedy were heavily targeted by both parties’ oral and written arguments because there was speculation that any one of these traditionally conservative justices could be the fifth vote to uphold the individual mandate. However, it does not appear likely that the federal government supported their claims well enough to yield such a result. Instead, the Court will respond in the negative to the issue of "Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision." The Court’s interpretation of the Congress' commerce power has undergone two major expansions since the Constitution was ratified, and both of these expansions were met with a contractionary response to prevent the commerce clause’s growth into an unchecked power. This Court will not open a new frontier of power for the Congress, but rather it will respect the limits on Congressional power established by the Rehnquist Court.