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England to assume consent for organ donation

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Des-Bal
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Postby Des-Bal » Thu Aug 09, 2018 11:41 am

Spirit of Hope wrote:That is actually the opposite of the truth, as most states have good samaratain laws that protect those who render aid to a person who is incapacitated, in many cases even if the person denied consent for aid while conscious.

IIRC, in England it is a part of common law, not actually a written statute, and can at times require a person to give care.


Oh it's obviously not true, it's an absolute absurdity that has been repeated a few times in this thread. It supposes 1) that there are no CRIMINAL issues involved with performing medical procedures on non-consenting persons, and 2) that we train doctors to commit battery. What would a world look like where this happened?

I think the big difference is that paying for emergency medical care would be strictly optional. See, if you had a claim of battery against any doctor who treated you while you were unconscious then even assuming you don't get a huge payday the compensatory damages would be at least for the cost of your medical care.
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Des-Bal
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Postby Des-Bal » Thu Aug 09, 2018 11:43 am

Western-Ukraine wrote:That's not enough. Family members aren't always able to follow the will of the dead individual.


If the issue wasn't important enough for them to make their wishes known to the state or their family members I don't think it's that big a deal for that wish to be ignored.
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Postby Pollona » Thu Aug 09, 2018 1:48 pm

Spirit of Hope wrote:That is actually the opposite of the truth, as most states have good samaratain laws that protect those who render aid to a person who is incapacitated, in many cases even if the person denied consent for aid while conscious.

IIRC, in England it is a part of common law, not actually a written statute, and can at times require a person to give care.


Good Samaritan laws are intended to protect bystanders' rights to intervene and shield them from fear of being sued or prosecuted for unintentional injury or wrongful death. The standard does not apply to medical professionals. In fact, in many jurisdictions they are singled out for exclusion from GSLs in connection to their employment.

Your notion of "duty to care" is absolutely false. In almost all common law jurisdiction there is no general duty for someone to act, and almost zero statutory penalties for failing to act, those that exist have no connection to the medical profession. "Duty to care" (more often called "duty to rescue") is an invention of civil law countries.

Des-Bal wrote:
Western-Ukraine wrote:That's not enough. Family members aren't always able to follow the will of the dead individual.


If the issue wasn't important enough for them to make their wishes known to the state or their family members I don't think it's that big a deal for that wish to be ignored.
.

I'll now mark down another commenter for agreeing with the proposition that: "I accept that some people's bodily integrity will be violated, but we are saving the lives of others in the process." A perfectly reasonable position to take (one I disagree with) and I appreciate the sincerity.
Last edited by Pollona on Thu Aug 09, 2018 1:48 pm, edited 1 time in total.
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Des-Bal
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Postby Des-Bal » Thu Aug 09, 2018 1:50 pm

Pollona wrote:

I'll now mark down another commenter for agreeing with the proposition that: "I accept that some people's bodily integrity will be violated, but we are saving the lives of others in the process." A perfectly reasonable position to take (one I disagree with) and I appreciate the sincerity.


The only people effected are those who don't actually care enough to state a preference to the state or their relatives.

edit: Whether you consented because it was slightly more convenient or because you sincerely thought it was a good idea, by not opting out you DID consent.
Last edited by Des-Bal on Thu Aug 09, 2018 1:52 pm, edited 1 time in total.
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Postby Ifreann » Thu Aug 09, 2018 1:51 pm

Western-Ukraine wrote:It's sickening, no matter the intent. We're above disrespecting the dead who have no way to object or resist, even if those people had the choice to opt out. There are many scenarios where one would not opt out, too many to ignore.

Harvesting the organs of someone who consented to that is not disrespectful.
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Postby Spirit of Hope » Thu Aug 09, 2018 2:55 pm

Pollona wrote:
Spirit of Hope wrote:That is actually the opposite of the truth, as most states have good samaratain laws that protect those who render aid to a person who is incapacitated, in many cases even if the person denied consent for aid while conscious.

IIRC, in England it is a part of common law, not actually a written statute, and can at times require a person to give care.


Good Samaritan laws are intended to protect bystanders' rights to intervene and shield them from fear of being sued or prosecuted for unintentional injury or wrongful death. The standard does not apply to medical professionals. In fact, in many jurisdictions they are singled out for exclusion from GSLs in connection to their employment.


A medical professional can be sued when they fail to do their job properly, not when they do their job and you don't like it. So if medical professionals attempt to revive you, and you didn't want to be revived, you can't sue. If they don't do their job correctly, even if you have consented, you can sue.

Good samaratain laws extend the protection, by allowing bystanders to intervene and not get sued if they do the job badly, assuming their is a need to intervene.

Your notion of "duty to care" is absolutely false. In almost all common law jurisdiction there is no general duty for someone to act, and almost zero statutory penalties for failing to act, those that exist have no connection to the medical profession. "Duty to care" (more often called "duty to rescue") is an invention of civil law countries.

I did not say that there was a general duty to act, instead that "at times" you are required to act. Thise times are generally, when you are responsible for the person in distress, or when you caused the distress.

So saying it is absolutely false, is false. I never said it was general.
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Postby The New California Republic » Thu Aug 09, 2018 3:20 pm

Pollona wrote:
Des-Bal wrote:
If the issue wasn't important enough for them to make their wishes known to the state or their family members I don't think it's that big a deal for that wish to be ignored.


I'll now mark down another commenter for agreeing with the proposition that: "I accept that some people's bodily integrity will be violated, but we are saving the lives of others in the process."

If they didn't communicate that wish to the state or to family members, then they clearly didn't care about it that much, so not much is lost, if anything. Again, if they didn't communicate that wish to others, then it is just tough shit. If such a view was not communicated, and the person who held the view is dead, then the wish has ceased to exist. The wish isn't floating around somewhere, it was annihilated at the moment of brain death. There can be no bodily integrity violation if there is no wish. It's the same if someone wishes for their property to go to a certain charity after they die; if they do not communicate it to anyone then the wish ceases to exist when they die. It isn't a violation to not fulfill that wish if it isn't known to anybody.
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Prekonate
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Postby Prekonate » Thu Aug 09, 2018 4:04 pm

Since the majority of the falsehoods stated in this thread since I last checked it are found in the three quotes below, I will respond to them all together.

Spirit of Hope wrote:A medical professional can be sued when they fail to do their job properly, not when they do their job and you don't like it. So if medical professionals attempt to revive you, and you didn't want to be revived, you can't sue. If they don't do their job correctly, even if you have consented, you can sue.

The first falsehood is that a doctor cannot be sued for delivering lifesaving care to an unconscious person.

The doctrine of medical emergency allows a doctor to presume the consent of an incapable person whose consent is unknown, and who, without medical intervention, would die. But it does not automatically apply any time a doctor delivers live-saving care to an incapable person. Once revived, these patients may indeed sue their doctors for battery on the basis that they did not truly consent, and may win if they can prove this lack of consent on a balance of probabilities (the normal standard for a civil suit). An example of a successful case is Malette v Shulman, a Canadian case which has been cited in English jurisprudence, in which an unconscious Jehovah's Witness was given a blood transfusion to save her life, then successfully sued for battery because she was able to prove that she had not consented at the time the transfusion was given.

But the wider falsehood implicit in analogizing to emergency doctrine is the suggestion that emergency doctrine cannot be reconciled with the principle of self-determination which underlies the law of consent, and so constitutes a class of exception, into which removal of organs without explicit consent can also fit. For the reasons explained in the fifth paragraph of this post, emergency can indeed be reconciled with self-determination, because it affords the patient the ultimate legal choice to enforce his consent. Presumed consent to organ transplantation cannot be; it does not allow an unconscious patient to enforce what would have been his original decision on consent once competent. It takes the decision about consent out of the hands of the patient.

Spirit of Hope wrote:That is actually the opposite of the truth, as most states have good samaratain laws that protect those who render aid to a person who is incapacitated, in many cases even if the person denied consent for aid while conscious.

IIRC, in England it is a part of common law, not actually a written statute, and can at times require a person to give care.

The second falsehood is that Good Samaritan laws, which apply to members of the general public (who cannot remove organs) have anything to do with this issue. And if there were an act providing some kind of immunity for doctors who provide life-saving care regardless of a patient's consent, it, like the proposed act, would constitute a dangerous exception to the general principle of self-determination which underlies consent.

Des-Bal wrote:Oh it's obviously not true, it's an absolute absurdity that has been repeated a few times in this thread. It supposes 1) that there are no CRIMINAL issues involved with performing medical procedures on non-consenting persons, and 2) that we train doctors to commit battery. What would a world look like where this happened?

I think the big difference is that paying for emergency medical care would be strictly optional. See, if you had a claim of battery against any doctor who treated you while you were unconscious then even assuming you don't get a huge payday the compensatory damages would be at least for the cost of your medical care.

The third falsehood is that "Des-Bal" has any idea what he's talking about.
Last edited by Prekonate on Thu Aug 09, 2018 4:06 pm, edited 2 times in total.
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Postby Des-Bal » Thu Aug 09, 2018 4:25 pm

Prekonate wrote:Since the majority of the falsehoods stated in this thread since I last checked it are found in the three quotes below, I will respond to them all together.


The first falsehood is that a doctor cannot be sued for delivering lifesaving care to an unconscious person.

The doctrine of medical emergency allows a doctor to presume the consent of an incapable person whose consent is unknown, and who, without medical intervention, would die. But it does not automatically apply any time a doctor delivers live-saving care to an incapable person. Once revived, these patients may indeed sue their doctors for battery on the basis that they did not truly consent, and may win if they can prove this lack of consent on a balance of probabilities (the normal standard for a civil suit). An example of a successful case is Malette v Shulman, a Canadian case which has been cited in English jurisprudence, in which an unconscious Jehovah's Witness was given a blood transfusion to save her life, then successfully sued for battery because she was able to prove that she had not consented at the time the transfusion was given.

But the wider falsehood implicit in analogizing to emergency doctrine is the suggestion that emergency doctrine cannot be reconciled with the principle of self-determination which underlies the law of consent, and so constitutes a class of exception, into which removal of organs without explicit consent can also fit. For the reasons explained in the fifth paragraph of this post, emergency can indeed be reconciled with self-determination, because it affords the patient the ultimate legal choice to enforce his consent. Presumed consent to organ transplantation cannot be; it does not allow an unconscious patient to enforce what would have been his original decision on consent once competent. It takes the decision about consent out of the hands of the patient.





I am once again demading a source. I have done this multiple times. There is no "doctrine of medical emergencies." You made up this string of words and are presenting it as some sort of legal canon that doesn't actually seem to do anything.

Malette v Shulman involved a doctor who knew specifically that the plaintiff did not want a transfusion because she carried a card that said "don't give me a fucking blood transfusion." The issue was that the doctor ignored her decision not that he did something without securing her consent.

Now you wrote off my post by commenting that I didn't know what I was talking about but I can't but notice you didn't actually address anything I said. This ridiculous idea of yours supposes no criminal consequences for performing surgery on non-consenting persons and it supposes that anyone who wanted free emergency medical care could get it just by filing suit.
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Postby Fartsniffage » Thu Aug 09, 2018 4:34 pm

Des-Bal wrote:
Prekonate wrote:Since the majority of the falsehoods stated in this thread since I last checked it are found in the three quotes below, I will respond to them all together.


The first falsehood is that a doctor cannot be sued for delivering lifesaving care to an unconscious person.

The doctrine of medical emergency allows a doctor to presume the consent of an incapable person whose consent is unknown, and who, without medical intervention, would die. But it does not automatically apply any time a doctor delivers live-saving care to an incapable person. Once revived, these patients may indeed sue their doctors for battery on the basis that they did not truly consent, and may win if they can prove this lack of consent on a balance of probabilities (the normal standard for a civil suit). An example of a successful case is Malette v Shulman, a Canadian case which has been cited in English jurisprudence, in which an unconscious Jehovah's Witness was given a blood transfusion to save her life, then successfully sued for battery because she was able to prove that she had not consented at the time the transfusion was given.

But the wider falsehood implicit in analogizing to emergency doctrine is the suggestion that emergency doctrine cannot be reconciled with the principle of self-determination which underlies the law of consent, and so constitutes a class of exception, into which removal of organs without explicit consent can also fit. For the reasons explained in the fifth paragraph of this post, emergency can indeed be reconciled with self-determination, because it affords the patient the ultimate legal choice to enforce his consent. Presumed consent to organ transplantation cannot be; it does not allow an unconscious patient to enforce what would have been his original decision on consent once competent. It takes the decision about consent out of the hands of the patient.





I am once again demading a source. I have done this multiple times. There is no "doctrine of medical emergencies." You made up this string of words and are presenting it as some sort of legal canon that doesn't actually seem to do anything.

Malette v Shulman involved a doctor who knew specifically that the plaintiff did not want a transfusion because she carried a card that said "don't give me a fucking blood transfusion." The issue was that the doctor ignored her decision not that he did something without securing her consent.

Now you wrote off my post by commenting that I didn't know what I was talking about but I can't but notice you didn't actually address anything I said. This ridiculous idea of yours supposes no criminal consequences for performing surgery on non-consenting persons and it supposes that anyone who wanted free emergency medical care could get it just by filing suit.


We're talking about the UK. Everyone gets emergency medical care for free.

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Postby Des-Bal » Thu Aug 09, 2018 4:39 pm

Fartsniffage wrote:We're talking about the UK. Everyone gets emergency medical care for free.


Fair enough. We're talking explicitly about profiting from emergency medical care.
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Postby Dogmeat » Thu Aug 09, 2018 7:06 pm

Western-Ukraine wrote:It's sickening, no matter the intent. We're above disrespecting the dead who have no way to object or resist, even if those people had the choice to opt out. There are many scenarios where one would not opt out, too many to ignore.

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Postby Prekonate » Thu Aug 09, 2018 7:57 pm

Des-Bal wrote:
Prekonate wrote:Since the majority of the falsehoods stated in this thread since I last checked it are found in the three quotes below, I will respond to them all together.


The first falsehood is that a doctor cannot be sued for delivering lifesaving care to an unconscious person.

The doctrine of medical emergency allows a doctor to presume the consent of an incapable person whose consent is unknown, and who, without medical intervention, would die. But it does not automatically apply any time a doctor delivers live-saving care to an incapable person. Once revived, these patients may indeed sue their doctors for battery on the basis that they did not truly consent, and may win if they can prove this lack of consent on a balance of probabilities (the normal standard for a civil suit). An example of a successful case is Malette v Shulman, a Canadian case which has been cited in English jurisprudence, in which an unconscious Jehovah's Witness was given a blood transfusion to save her life, then successfully sued for battery because she was able to prove that she had not consented at the time the transfusion was given.

But the wider falsehood implicit in analogizing to emergency doctrine is the suggestion that emergency doctrine cannot be reconciled with the principle of self-determination which underlies the law of consent, and so constitutes a class of exception, into which removal of organs without explicit consent can also fit. For the reasons explained in the fifth paragraph of this post, emergency can indeed be reconciled with self-determination, because it affords the patient the ultimate legal choice to enforce his consent. Presumed consent to organ transplantation cannot be; it does not allow an unconscious patient to enforce what would have been his original decision on consent once competent. It takes the decision about consent out of the hands of the patient.



I am once again demading a source. I have done this multiple times. There is no "doctrine of medical emergencies." You made up this string of words and are presenting it as some sort of legal canon that doesn't actually seem to do anything.

Malette v Shulman involved a doctor who knew specifically that the plaintiff did not want a transfusion because she carried a card that said "don't give me a fucking blood transfusion." The issue was that the doctor ignored her decision not that he did something without securing her consent.

Now you wrote off my post by commenting that I didn't know what I was talking about but I can't but notice you didn't actually address anything I said. This ridiculous idea of yours supposes no criminal consequences for performing surgery on non-consenting persons and it supposes that anyone who wanted free emergency medical care could get it just by filing suit.

You seem to latch on to things I say and try to disprove them one by one, without considering the impact that doing so has on your argument. If there is no emergency doctrine as you say, and thus no class of exception to the general rule that a practitioner requires consent to touch his patient, then the proposed organ consent act is even more unprecedented. It cannot even be analogized to an existing exception within the law of consent.

Luckily for you (?) I don't spend my time lying to people on the internet about law. If you had read Malette v Shulman, not just scanned it until you found something you thought undermined my point, you would've found numerous references to emergency doctrine. A reference can also be found in Halsbury’s Laws of England, volume 74: Medical Professions (2011), para 17: "A medical practitioner who examines a person against his will and without statutory authority to do so, and a surgeon who performs an operation or part of an operation without his patient’s express or implied* consent, are each liable in trespass. However, as an exception to this rule, in the case of an otherwise competent patient rendered unable to consent (for example, because he is unconscious), a medical practitioner has a duty to preserve the life or health of his patient including operating where necessary."*

But as I've been saying for pages upon pages, it would be inappropriate to analogize the proposed act to the doctrine of medical emergency, because the latter is still consistent with the principles of self-determination underlying the rest of consent law, and the former is not.

I did not reply to your other points about "criminal issues" and "that we train doctors to commit battery" (now you have added "costs" as a separate argument, I suppose), because you were attempting to use them to disprove the existence of medical emergency doctrine, and since that doctrine actually exists, engaging with them seemed like a waste of time. I am being snarkier than I'd prefer to be, but I got involved in this discussion because I thought the implications of the act on existing law could be interesting, and now I've been drawn into a discussion about whether that law even exists, by someone who obviously has no idea one way or another.

----

*To head off what's sure to be your next baseless argument, the word "implied" here is being used in the sense that someone implies consent to having their blood pressure taken by holding their arm out, not that someone implies consent to having their organs taken out by living in England.
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Postby Dazchan » Thu Aug 09, 2018 7:58 pm

Western-Ukraine wrote:We're above disrespecting the dead who have no way to object or resist, even if those people had the choice to opt out.


How can you say that they had no way to object in the same sentence where you acknowledge that they had the choice to opt out?
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Postby Spirit of Hope » Thu Aug 09, 2018 8:11 pm

Prekonate wrote:Since the majority of the falsehoods stated in this thread since I last checked it are found in the three quotes below, I will respond to them all together.

Spirit of Hope wrote:A medical professional can be sued when they fail to do their job properly, not when they do their job and you don't like it. So if medical professionals attempt to revive you, and you didn't want to be revived, you can't sue. If they don't do their job correctly, even if you have consented, you can sue.

The first falsehood is that a doctor cannot be sued for delivering lifesaving care to an unconscious person.

The doctrine of medical emergency allows a doctor to presume the consent of an incapable person whose consent is unknown, and who, without medical intervention, would die. But it does not automatically apply any time a doctor delivers live-saving care to an incapable person. Once revived, these patients may indeed sue their doctors for battery on the basis that they did not truly consent, and may win if they can prove this lack of consent on a balance of probabilities (the normal standard for a civil suit). An example of a successful case is Malette v Shulman, a Canadian case which has been cited in English jurisprudence, in which an unconscious Jehovah's Witness was given a blood transfusion to save her life, then successfully sued for battery because she was able to prove that she had not consented at the time the transfusion was given.


Big problem with your argument, the doctor had evidence that the patient would not have consented to the procedure, specifically the person was carrying a card that stated they were not to receive a blood transfusion because they were a Jehovah's Witness. This card was brought to the doctors attention, the doctor ignored it.

This is not a doctor being sued because they unknowingly violated a patients personal beliefs, but a doctor being punished because they knowingly violated a patients beliefs. If the card had not existed their would have been no case.

This case in fact proves the opposite of the point you want it to, doctors can do what they think is right, as long as they don't knowingly violate a patients wishes.

This law would work in a similar way, the doctor assumes they have the right to harvest organs for donations unless they have evidence to the contrary, such as the proposed online form, statements by family, or a card similar to what Mrs. Georgette Malette carried on her person.

But the wider falsehood implicit in analogizing to emergency doctrine is the suggestion that emergency doctrine cannot be reconciled with the principle of self-determination which underlies the law of consent, and so constitutes a class of exception, into which removal of organs without explicit consent can also fit. For the reasons explained in the fifth paragraph of this post, emergency can indeed be reconciled with self-determination, because it affords the patient the ultimate legal choice to enforce his consent. Presumed consent to organ transplantation cannot be; it does not allow an unconscious patient to enforce what would have been his original decision on consent once competent. It takes the decision about consent out of the hands of the patient.


As the above mentioned law case shows, decisions made in a medical emergency can still violate a persons bodily sovereignty and not result in a legal suit. This one did because the doctored knowingly violated the persons consent, had the card not existed the doctor would have been perfectly fine to carry out his actions.

The decision is hardly taken from a person, they have quite literally their entire lives in which to make it, and then their families can also guard their desires after they die. But after they die they are a corpse, not a body. They no longer exist and their abilities to make a decision are gone.
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Des-Bal
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Postby Des-Bal » Thu Aug 09, 2018 8:23 pm

Prekonate wrote:You seem to latch on to things I say and try to disprove them one by one, without considering the impact that doing so has on your argument. If there is no emergency doctrine as you say, and thus no class of exception to the general rule that a practitioner requires consent to touch his patient, then the proposed organ consent act is even more unprecedented. It cannot even be analogized to an existing exception within the law of consent.

Luckily for you (?) I don't spend my time lying to people on the internet about law. If you had read Malette v Shulman, not just scanned it until you found something you thought undermined my point, you would've found numerous references to emergency doctrine. A reference can also be found in Halsbury’s Laws of England, volume 74: Medical Professions (2011), para 17: "A medical practitioner who examines a person against his will and without statutory authority to do so, and a surgeon who performs an operation or part of an operation without his patient’s express or implied* consent, are each liable in trespass. However, as an exception to this rule, in the case of an otherwise competent patient rendered unable to consent (for example, because he is unconscious), a medical practitioner has a duty to preserve the life or health of his patient including operating where necessary."*

But as I've been saying for pages upon pages, it would be inappropriate to analogize the proposed act to the doctrine of medical emergency, because the latter is still consistent with the principles of self-determination underlying the rest of consent law, and the former is not.

I did not reply to your other points about "criminal issues" and "that we train doctors to commit battery" (now you have added "costs" as a separate argument, I suppose), because you were attempting to use them to disprove the existence of medical emergency doctrine, and since that doctrine actually exists, engaging with them seemed like a waste of time. I am being snarkier than I'd prefer to be, but I got involved in this discussion because I thought the implications of the act on existing law could be interesting, and now I've been drawn into a discussion about whether that law even exists, by someone who obviously has no idea one way or another.

----

*To head off what's sure to be your next baseless argument, the word "implied" here is being used in the sense that someone implies consent to having their blood pressure taken by holding their arm out, not that someone implies consent to having their organs taken out by living in England.


Wow.
Okay, so: The point is the "doctrine" you're referring to where we just go ahead and batter patients and then let them sue if they feel like it is imaginary. The logic behind the allowances for treatment on a person unable to consent is NOT founded in the idea that the person can later sue. It's based in the idea that in this situation where they are unable to consent we can operate with the assumption, in the absence of clear evidence to the contrary, that they don't want to die and we can work with that assumption without their consent.

Now I'm going to point you back to your source. It explicitly refutes your argument.

"A medical practitioner who examines a person against his will and without statutory authority to do so, and a surgeon who performs an operation or part of an operation without his patient’s express or implied* consent, are each liable in trespass. However, as an exception to this rule, in the case of an otherwise competent patient rendered unable to consent (for example, because he is unconscious), a medical practitioner has a duty to preserve the life or health of his patient including operating where necessary."



The underline means it is not a trespass for a practitioner to work on a person without their consent if they've been rendered incapable. This is the literal opposite of what you've been arguing. The ENTIRE reason you feel that this isn't analogous is based on an imaginary doctrine. It is pretty analogous because in both situations we're assuming what person who cannot consent would want. The only point of divergence is that we have their prior consent in the form of them not opting out.

No doctrine resembling what you've described exists, it would be stupid if it did because it would LITERALLY be training and requiring doctors to commit battery and probably a host of serious crimes. You ignored that because you can't refute it, it is the absurdity that would arise if the world operated as you believe it does.
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Postby Spirit of Hope » Thu Aug 09, 2018 8:30 pm

Prekonate wrote:
Des-Bal wrote:
I am once again demading a source. I have done this multiple times. There is no "doctrine of medical emergencies." You made up this string of words and are presenting it as some sort of legal canon that doesn't actually seem to do anything.

Malette v Shulman involved a doctor who knew specifically that the plaintiff did not want a transfusion because she carried a card that said "don't give me a fucking blood transfusion." The issue was that the doctor ignored her decision not that he did something without securing her consent.

Now you wrote off my post by commenting that I didn't know what I was talking about but I can't but notice you didn't actually address anything I said. This ridiculous idea of yours supposes no criminal consequences for performing surgery on non-consenting persons and it supposes that anyone who wanted free emergency medical care could get it just by filing suit.

You seem to latch on to things I say and try to disprove them one by one, without considering the impact that doing so has on your argument. If there is no emergency doctrine as you say, and thus no class of exception to the general rule that a practitioner requires consent to touch his patient, then the proposed organ consent act is even more unprecedented. It cannot even be analogized to an existing exception within the law of consent.

Luckily for you (?) I don't spend my time lying to people on the internet about law. If you had read Malette v Shulman, not just scanned it until you found something you thought undermined my point, you would've found numerous references to emergency doctrine. A reference can also be found in Halsbury’s Laws of England, volume 74: Medical Professions (2011), para 17: "A medical practitioner who examines a person against his will and without statutory authority to do so, and a surgeon who performs an operation or part of an operation without his patient’s express or implied* consent, are each liable in trespass. However, as an exception to this rule, in the case of an otherwise competent patient rendered unable to consent (for example, because he is unconscious), a medical practitioner has a duty to preserve the life or health of his patient including operating where necessary."*

-snip-

*To head off what's sure to be your next baseless argument, the word "implied" here is being used in the sense that someone implies consent to having their blood pressure taken by holding their arm out, not that someone implies consent to having their organs taken out by living in England.


"Liability was imposed in this case on the basis that the doctor tortiously violated his patient's rights over her own body by acting contrary to the Jehovah's Witness card and administering blood transfusions that were not authorized."

It was not because he did the procedure that the doctor was in trouble, but because he did it against the patients expressed preferences. This is not the same thing as what we have been discussing, where the doctor will have no evidence indicating that the person wishes to keep their organs.

"Basically, any intentional nonconsensual touching which is harmful or offensive to a person's reasonable sense of dignity is actionable."

I would be hard put to say organ harvesting is "harmful or offensive to a person's reasonable sense of dignity" and would argue that the ability to opt out gives those who think it is ample opportunity to opt out.

We even get a nice three part test:
" (a) the patient must be unconscious or without capacity to make a decision, while no one legally authorized to act as agent for the patient is available"

There dead Jim, they can't make a decision, and their family has the ability to make a decision for them.

"(b) time must be of the essence, in the sense that it must reasonably appear that delay until such time as an effective consent could be obtained would subject the patient to a risk of a serious bodily injury or death which prompt action would avoid"

Organs must be harvested rapidly.

"(c) under the circumstances, a reasonable person would consent, and the probabilities are that the patient, would consent."

I would say a reasonable person would consent to have their organs harvested, if asked. You can disagree with me if you wish. Since it looks like this is going to become law, I would argue those citizens who will be effected by it would also agree.
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Postby Pollona » Thu Aug 09, 2018 8:34 pm

Spirit of Hope wrote:
Pollona wrote:Good Samaritan laws are intended to protect bystanders' rights to intervene and shield them from fear of being sued or prosecuted for unintentional injury or wrongful death. The standard does not apply to medical professionals. In fact, in many jurisdictions they are singled out for exclusion from GSLs in connection to their employment.


A medical professional can be sued when they fail to do their job properly, not when they do their job and you don't like it. So if medical professionals attempt to revive you, and you didn't want to be revived, you can't sue. If they don't do their job correctly, even if you have consented, you can sue.

Good samaratain laws extend the protection, by allowing bystanders to intervene and not get sued if they do the job badly, assuming their is a need to intervene.


GLS do not shield medical professionals acting in their capacity as a doctors, whether or not they do their jobs well or poorly. This example is entirely beside the point because until now we have been talking about medical practitioners in their capacity as medical practitioners, not aimless bystanders. Unless you've noticed more doctors giving medical care to individuals on the streets rather than in hospitals, we can reasonably assume that in a hypothetical scenario of a doctor being sued for providing emergency medical care in a healthcare facility, they will not be able to defend themselves as simply a 'Good Samaritan' .

Which brings us back to the proposition that medical professional attempts to revive you, and you didn't want to be revived, you cannot seek legal relief. We can easily refute this proposition by looking at DNR orders in common law countries (the exact inter-workings vary by state) which operate on the principle that a patient can choose to not be revived, and such orders have a force of law. That's a formal legal example representing a clear case where you could sue a medical professional for providing emergency care.

Prekonate has outlined that yes, a civil suit is legally and theoretically possible to bring before a court. I think what you are expressing is an innate skepticism about the success of such a suit: between a doctor and say, a patient they revived who claims they did not wish to be revived. And here I must confess my agreement: Were I in the position of being a juror or judge of such a case, I would admittedly be as skeptical and dumbfounded by a seemingly ungrateful plaintiff as I think you would be.

That's why the doctrine of medical emergency is tailored to work as closely as possible in conjunction with the principle of self-determination, that "each man is his own master" (Scott v. Bradford) operating so that, at the end of the day, the physician's judgement is not substituted over that of the patient. That's why emergency doctrine is so narrowly tailored. That's why our side of the argument finds this change in organ transplantation so controversial, because an unconscious individual is unable to enforce what would have been their own judgement and decision if fully competent.

Des-Bal wrote:The only people effected are those who don't actually care enough to state a preference to the state or their relatives.

edit: Whether you consented because it was slightly more convenient or because you sincerely thought it was a good idea, by not opting out you DID consent.


Yes, I completely agree the category of people affected will be those people whom you described. And the law implicitly recognizes they will be affected, in order to transplant their organs to save the lives of others.

On the same token, we can agree that not opting out is not the exact same thing as giving express consent. It is only *implied* consent, a substitute for, if you will, some sort of post-mortem spirit channeling.
Last edited by Pollona on Thu Aug 09, 2018 8:37 pm, edited 1 time in total.
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Postby Des-Bal » Thu Aug 09, 2018 8:41 pm

Pollona wrote:Yes, I completely agree the category of people affected will be those people whom you described. And the law implicitly recognizes they will be affected, in order to transplant their organs to save the lives of others.

On the same token, we can agree that not opting out is not the exact same thing as giving express consent. It is only *implied* consent, a substitute for, if you will, some sort of post-mortem spirit channeling.


Yes, those consenting people.

Declining the negative option is express consent. You manifested your consent by not opting out.
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Postby Pollona » Thu Aug 09, 2018 8:54 pm

Apologies, I cannot help myself:

"Basically, any intentional nonconsensual touching which is harmful or offensive to a person's reasonable sense of dignity is actionable."

I would be hard put to say organ harvesting is "harmful or offensive to a person's reasonable sense of dignity" and would argue that the ability to opt out gives those who think it is ample opportunity to opt out.


Is grave-robbing or body snatching harmful or offensive to a person's reasonable sense of dignity? Is the harvesting of a long-dead cadaver's organs (as ludicrous as it sounds it was once a major problem) substantively different than the recently deceased who did not give their consent to have their organs harvested? If you find one reprehensible, it is not a huge leap to find the other just as concerning. The difference, of course, is that in one case the organs can be used to save other people's lives.

If you are comfortable in the knowledge that not everyone's "sense of dignity" is satisfied, that lives are being saved thanks to persons who would have otherwise not consented, that's fine.

We even get a nice three part test:
" (a) the patient must be unconscious or without capacity to make a decision, while no one legally authorized to act as agent for the patient is available"

There dead Jim, they can't make a decision, and their family has the ability to make a decision for them.


As it applies to organ transplantation: I won't speak for Prekonate but I plead no contest here.

"(b) time must be of the essence, in the sense that it must reasonably appear that delay until such time as an effective consent could be obtained would subject the patient to a risk of a serious bodily injury or death which prompt action would avoid"

Organs must be harvested rapidly.


Organs must be harvested rapidly upon death, yes, but that is to prevent loss of life to someone else. It's clear that a reasonable person would interpret this section of the multi-part test as referring to procedures conducted on the patient themselves, in order to save their life. I don't know about you, but harvesting all my organs would probably result in my imminent death. If near death, it would guarantee it.

"(c) under the circumstances, a reasonable person would consent, and the probabilities are that the patient, would consent."

I would say a reasonable person would consent to have their organs harvested, if asked. You can disagree with me if you wish. Since it looks like this is going to become law, I would argue those citizens who will be effected by it would also agree.


Here we play the dangerous game of "balance of probability". You very well may be right, but there is a risk that you could find yourself not being the "reasonable person". It may be that one could argue that a reasonable person of X or Y demographic, one similar to the patient, would not have consented. I'm not too familiar on public opinion polls on the popularity of at-death organ donation myself.

At best, even by this standard organ harvesting could only meet 2 portions of this 3 factor test.

Edit:
Des-Bal wrote:Declining the negative option is express consent. You manifested your consent by not opting out.


Not quite. Implicit Consent, as defined by the Legal Dictionary: "The assumption that a person has given permission for an action, which is inferred from his or her actions, rather than expressly or explicitly provided."

A manifestation is an inferred logical result given prior behavior. In this instance we assume that if you did not opt out, you therefore given your consent. (If P, then Q). Explicit consent is more like a tautology, if you express your consent, you've given your consent. (If Q, then Q). Of course, our side of the argument and all this discussion of medical doctrine is, at its core, premised on the fact that these two statements are not one in the same.
Last edited by Pollona on Thu Aug 09, 2018 9:12 pm, edited 2 times in total.
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Postby Purpelia » Fri Aug 10, 2018 2:59 am

Des-Bal wrote:Yes, those consenting people.

Declining the negative option is express consent. You manifested your consent by not opting out.

The problem I see with that approach is the fact that it normalizes organ donation. Right now people might opt out at will. But how long before opting out becomes stigmatized by society because everyone is just so used to consent by default. That's why I don't like assumed consent for anything other than things that directly benefit you.

You can make a case for having vaccination or blood transfusion or stuff like that forced on a person by default because it saves their life. Having someone butchered for his organs like a peace of meat does not.
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Postby Vassenor » Fri Aug 10, 2018 3:04 am

Purpelia wrote:
Des-Bal wrote:Yes, those consenting people.

Declining the negative option is express consent. You manifested your consent by not opting out.

The problem I see with that approach is the fact that it normalizes organ donation. Right now people might opt out at will. But how long before opting out becomes stigmatized by society because everyone is just so used to consent by default. That's why I don't like assumed consent for anything other than things that directly benefit you.

You can make a case for having vaccination or blood transfusion or stuff like that forced on a person by default because it saves their life. Having someone butchered for his organs like a peace of meat does not.


Wait how is organ donation bad?

Also in what way does organ donation not save lives?
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Postby Constitutional Technocracy of Minecraft » Fri Aug 10, 2018 3:06 am

Purpelia wrote:
Des-Bal wrote:Yes, those consenting people.

Declining the negative option is express consent. You manifested your consent by not opting out.

The problem I see with that approach is the fact that it normalizes organ donation. Right now people might opt out at will. But how long before opting out becomes stigmatized by society because everyone is just so used to consent by default. That's why I don't like assumed consent for anything other than things that directly benefit you.

You can make a case for having vaccination or blood transfusion or stuff like that forced on a person by default because it saves their life. Having someone butchered for his organs like a peace of meat does not.

Organ donation saves another person's life. Plus, (at the very least outside China) the organs are not removed until after the person has died.

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Postby Purpelia » Fri Aug 10, 2018 3:18 am

Vassenor wrote:Wait how is organ donation bad?

Because I say so. Good and bad are matters of opinion. Which is why consent exists as a concept. It is an expression of personal opinion.
I am not saying you are wrong for wanting to have your organs removed. I am just saying that I feel it's wrong to make that consent semi-mandatory through social norms stemming through the systematic normalization of the practice by the state.

Also in what way does organ donation not save lives?

It does not save YOUR life. It might save someone else. But it is wrong to assume consent for things that do NOT benefit YOU but only benefit OTHERS AT YOUR EXPENSE.

Emphasis mine. Altruism or lack there off should be a personal choice. Especially when it comes to the one and only thing one ever really owns.



Mind you. I am not saying that the english are wrong for doing this. If they want to have it set like this by their laws it's their nation and their right to do so. I am just saying that I dislike it on principal and wouldn't want to see it in my nation.
Last edited by Purpelia on Fri Aug 10, 2018 3:20 am, edited 2 times in total.
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Postby Constitutional Technocracy of Minecraft » Fri Aug 10, 2018 3:22 am

Purpelia wrote:
Also in what way does organ donation not save lives?

It does not save YOUR life. It might save someone else. But it is wrong to assume consent for things that do NOT benefit YOU but only benefit OTHERS AT YOUR EXPENSE.

Organ donation works by removing your organs for transplantation after you're dead. it is at no expense to you while you're alive.

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