Legal europeanization as legal transformation : some insights from Swiss 'outer Europe'

The "Europeanization" of non-EU countries' laws is predominantly seen as an "export" of the EU acquis, especially in the case of so-called "quasi-member" states such as Switzerland. Based on an examination of the Swiss experience, this paper highlights the flaws of this conceptualization: the Europeanization of Swiss Law is a highly differentiated phenomenon, encompassing several forms of approximation to EU Law. All of these forms fall short of an "export" of norms, and result in the creation of something new: a "Europeanized law" that is similar to, but qualitatively different from, EU Law. Another drawback of the "export" metaphor is the emphasis it places on the isomorphism of positive legislation. Europeanization goes deeper than that. As shown in this paper, it is a process of transformation involving not only positive law, but also legal thinking. The Swiss case demonstrates how significant such deeper transformations can be: the Europeanization of positive law has induced an alteration of the traditional canon of legal interpretation. It also demonstrates how problematic such transformations can be: the above-mentioned alteration has not given rise to a new and universally accepted canon of interpretation. This reflects the tension between the need for clear "rules of reference" for EU legal materials - which are required in order to restore coherence and predictability to an extensively Europeanized legal system - and the reluctance to give a legal value to foreign legal materials - which is rooted in a traditional understanding of the concept of "law". Such tension, in turn, shows what deep and difficult transformations are required in order to establish a viable model of legal integration outside supranational structures.

Sudden death: ethical and legal problems of post-mortem forensic genetic testing for hereditary cardiac diseases.

Hereditary non-structural diseases such as catecholaminergic polymorphic ventricular tachycardia (CPVT), long QT, and the Brugada syndrome as well as structural disease such as hypertrophic cardiomyopathy (HCM) and arrhythmogenic right ventricular cardiomyopathy (ARVC) cause a significant percentage of sudden cardiac deaths in the young. In these cases, genetic testing can be useful and does not require proxy consent if it is carried out at the request of judicial authorities as part of a forensic death investigation. Mutations in several genes are implicated in arrhythmic syndromes, including SCN5A, KCNQ1, KCNH2, RyR2, and genes causing HCM. If the victim's test is positive, this information is important for relatives who might be themselves at risk of carrying the disease-causing mutation. There is no consensus about how professionals should proceed in this context. This article discusses the ethical and legal arguments in favour of and against three options: genetic testing of the deceased victim only; counselling of relatives before testing the victim; counselling restricted to relatives of victims who tested positive for mutations of serious and preventable diseases. Legal cases are mentioned that pertain to the duty of geneticists and other physicians to warn relatives. Although the claim for a legal duty is tenuous, recent publications and guidelines suggest that geneticists and others involved in the multidisciplinary approach of sudden death (SD) cases may, nevertheless, have an ethical duty to inform relatives of SD victims. Several practical problems remain pertaining to the costs of testing, the counselling and to the need to obtain permission of judicial authorities.

Retrospective research: What are the ethical and legal requirements?

Retrospective research is conducted on already available data and/or biologic material. Whether such research requires that patients specifically consent to the use of "their" data continues to stir controversy. From a legal and ethical point of view, it depends on several factors. The main criteria to be considered are whether the data or the sample is anonymous, whether the researcher is the one who collected it and whether the patient was told of the possible research use. In Switzerland, several laws delineate the procedure to be followed. The definition of "anonymous" is open to some interpretation. In addition, it is debatable whether consent waivers that are legally admissible for data extend to research involving human biological samples. In a few years, a new Swiss federal law on human research could clarify the regulatory landscape. Meanwhile, hospital-internal guidelines may impose stricter conditions than required by federal or cantonal law. Conversely, Swiss and European ethical texts may suggest greater flexibility and call for a looser interpretation of existing laws. The present article provides an overview of the issues for physicians, scientists, ethics committee members and policy makers involved in retrospective research in Switzerland. It aims at provoking more open discussions of the regulatory problems and possible future legal and ethical solutions.

Chlamydia trachomatis prevalence in undocumented migrants undergoing voluntary termination of pregnancy: a prospective cohort study.

BACKGROUND: Chlamydia trachomatis infection (CTI) is the most frequent sexual transmitted disease (STI) in Switzerland but its prevalence in undocumented migrants is unknown. We aimed to compare CTI prevalence among undocumented migrants undergoing termination of pregnancy (ToP) to the prevalence among women with residency permit. METHODS: This prospective cohort study included all pregnant, undocumented women presenting from March 2005 to October 2006 to the University hospital for ToP. The control group consisted of a systematic sample of pregnant women with legal residency permit coming to the same hospital during the same time period for ToP. RESULTS: One hundred seventy five undocumented women and 208 women with residency permit (controls) were included in the study. Mean ages were 28.0 y (SD 5.5) and 28.2 y (SD 7.5), respectively (p = 0.77). Undocumented women came primarily from Latin-America (78%). Frequently, they lacked contraception (23%, controls 15%, OR 1.8, 95% CI 1.04;2.9). Thirteen percent of undocumented migrants were found to have CTI (compared to 4.4% of controls; OR 3.2, 95% CI 1.4;7.3). CONCLUSION: This population of undocumented, pregnant migrants consisted primarily of young, Latino-American women. Compared to control women, undocumented migrants showed higher prevalence rates of genital CTI, which indicates that health professionals should consider systematic screening for STI in this population. There is a need to design programs providing better access to treatment and education and to increase migrants' awareness of the importance of contraception and transmission of STI.

Education, Equity and Distributive Beliefs: Evidences from the Chilean Case

During the year 2011, Chile has been scenario of several student's demonstrations claiming for more equity in the access to the higher education. The high support to the protests by the side of the general population (nearly 89% of approval in public opinion polls) seems to suggest the existence of a large consensus about the weaknesses of the Chilean educative model, a model that would challenge the traditional ideals of meritocracy and social mobility that are at the core of the educational systems in modern societies. In this context, a question that remains open is to what extent these claims are mostly based on consensual equality ideals, or whether they are influenced by individual socio-economic determinants vis-à-vis rational motives. Using data of the social inequality module International Social Survey Program (ISSP) of 2009, this research analyzes perceptions and beliefs about education and the distributive system as well as the influence of income and educational variables, through a structural equation modeling framework. Preliminary results indicate the presence of socioeconomic cleavages in relation to the fairness of the educational system, questioning the assumption about a normative consensus.

Association of education and receiving social transfers with allostatic load in the Swiss population-based CoLaus study.

BACKGROUND: Allostatic load reflects cumulative exposure to stressors throughout lifetime and has been associated with several adverse health outcomes. It is hypothesized that people with low socioeconomic status (SES) are exposed to higher chronic stress and have therefore greater levels of allostatic load. OBJECTIVE: To assess the association of receiving social transfers and low education with allostatic load. METHODS: We included 3589 participants (1812 women) aged over 35years and under retirement age from the population-based CoLaus study (Lausanne, Switzerland, 2003-2006). We computed an allostatic load index aggregating cardiovascular, metabolic, dyslipidemic and inflammatory markers. A novel index additionally including markers of oxidative stress was also examined. RESULTS: Men with low vs. high SES were more likely to have higher levels of allostatic load (odds ratio (OR)=1.93/2.34 for social transfers/education, 95%CI from 1.45 to 4.17). The same patterns were observed among women. Associations persisted after controlling for health behaviors and marital status. CONCLUSIONS: Low education and receiving social transfers independently and cumulatively predict high allostatic load and dysregulation of several homeostatic systems in a Swiss population-based study. Participants with low SES are at higher risk of oxidative stress, which may justify its inclusion as a separate component of allostatic load.

Medical and legal professionals' attitudes towards confidentiality and disclosure of clinical information in forensic settings: a survey using case vignettes.

OBJECTIVE: When potentially dangerous patients reveal criminal fantasies to their therapists, the latter must decide whether this information has to be transmitted to a third person in order to protect potential victims. We were interested in how medical and legal professionals handle such situations in the context of prison medicine and forensic evaluations. We aimed to explore the motives behind their actions and to compare these professional groups. METHOD: A mail survey was conducted among medical and legal professionals using five fictitious case vignettes. For each vignette, participants were asked to answer questions exploring what the professional should do in the situation and to explain their justification for the chosen response. RESULTS: A total of 147 questionnaires were analysed. Agreement between participants varied from one scenario to another. Overall, legal professionals tended to disclose information to a third party more easily than medical professionals, the latter tending to privilege confidentiality and patient autonomy over security. Perception of potential danger in a given situation was not consistently associated with actions. CONCLUSION: Professionals' opinions and attitudes regarding the confidentiality of potentially dangerous patients differ widely and appear to be subjectively determined. Shared discussions about clinical situations could enhance knowledge and competencies and reduce differences between professional groups.

Research involving biological material from forensic autopsies: legal and ethical issues.

Recommendations and laws do not always contain specific and clear provisions on the use of cadaveric material in research, and even more rarely do they address explicitly the ethical issues related to research on material obtained during forensic autopsy. In this article we analyse existing legal frameworks in Europe by comparing the legal provisions in 2 European Countries which are member states of the Council of Europe, the UK and Switzerland. They were chosen because they have distinct legal frameworks that make comparisons interesting. In addition, the detailed laws of the UK and a specific law project and national ethical recommendations in Switzerland permit us to define more clearly the legal range of options for researchers using cadaveric material obtained during forensic investigations. The Human Tissue Act 2004 in England, Wales and Northern Ireland, its Scottish equivalent with the same title (2006) and the national ethical guidelines in Switzerland all require consent from the deceased person, an appropriate relative or a person with power of attorney for healthcare decisions before cadaveric biological material can be obtained and used for research. However, if the purpose of the autopsy is purely forensic, no such authorization will be sought to carry out the autopsy and related analyses, which might include genetic testing. In order to be allowed to carry out future research projects, families need to be approached for informed consent, unless the deceased person had left written directives including permission to use his or her tissues for research.