Access, equity and the role of rights in health care

Modern health care rhetoric promotes choice and individual patient rights as dominant values. Yet we also accept that in any regime constrained by finite resources, difficult choices between patients are inevitable. How can we balance rights to liberty, on the one hand, with equity in the allocation of scarce resources on the other? For example, the duty of health authorities to allocate resources is a duty owed to the community as a whole, rather than to specific individuals. Macro-duties of this nature are founded on the notion of equity and fairness amongst individuals rather than personal liberty. They presume that if hard choices have to be made, they will be resolved according to fair and consistent principles which treat equal cases equally, and unequal cases unequally. In this paper, we argue for greater clarity and candour in the health care rights debate. With this in mind, we discuss (1) private and public rights, (2) negative and positive rights, (3) procedural and substantive rights, (4) sustainable health care rights and (5) the New Zealand booking system for prioritising access to elective services. This system aims to consider: individual need and ability to benefit alongside the resources made available to elective health services in an attempt to give the principles of equity practical effect. We describe a continuum on which the merits of those, sometimes competing, values-liberty and equity-can be evaluated and assessed.

The vulnerable subject of negligence law

The approach taken by English courts to the duty of care question in negligence has been subject to harsh criticism in recent years. This article examines this fundamental issue in tort law, drawing upon Canadian and Australian jurisprudence by way of comparison. From this analysis, the concept of vulnerability is developed as a productive means of understanding the duty of care. Vulnerability is of increasing interest in legal and political theory and it is of particular relevance to the law of negligence. In addition to aiding doctrinal coherence, vulnerability – with its focus on relationships and care – has the potential to broaden the way in which the subject of tort law is conceived because it challenges dominant assumptions about autonomy as being prior to the relationships on which it is dependent.

Conscience, discretion and the creation of property rights

This paper considers the utility of the concept of conscience or unconscionable conduct as a contemporary rationale for intervention in two principles applied where a person seeks to renege on an informal agreement relating to land: the principle in Rochefoucauld v Boustead; and transfers 'subject to' rights in favour of a claimant. By analysing the concept in light of our current understanding of the nature of judicial discretion and the use of general principles, it responds to arguments that unconscionability is too general a concept on which to base intervention. In doing so, it considers the nature of the discretion that is actually in issue when the court intervenes through conscience in these principles. However, the paper questions the use of constructive trusts as a response to unconscionability. It argues that there is a need, in limited circumstances, to separate the finding of unconscionability from the imposition of a constructive trust. In these limited circumstances, once unconscionability is found, the courts should have a discretion as to the remedy, modelled on that developed in the context of proprietary estoppel. The message underlying this paper is that many of the concerns expressed about unconscionability that have led to suggestions of alternative rationales for intervention can in fact be addressed whilst retaining an unconscionability analysis. Unconscionability remains a preferable rationale for intervention as it provides a common thread that links apparently separate principles and can assist our understanding of their scope.

The role of schizotypy and creativity in a group problem-solving task

The well-studied link between psychotic traits and creativity is a subject of much debate. The present study investigated the extent to which schizotypic personality traits - as measured by O-LIFE (Oxford-Liverpool Inventory of Feelings and Experiences) - equip healthy individuals to engage as groups in everyday tasks. From a sample of 69 students, eight groups of four participants - comprised of high, medium, or low-schizotypy individuals - were assembled to work as a team to complete a creative problem-solving task. Predictably, high scorers on the O-LIFE formulated a greater number of strategies to solve the task, indicative of creative divergent thinking. However, for task success (as measured by time taken to complete the problem) an inverted U shaped pattern emerged, whereby high and low-schizotypy groups were consistently faster than medium schizotypy groups. Intriguing data emerged concerning leadership within the groups, and other tangential findings relating to anxiety, competition and motivation were explored. These findings challenge the traditional cliche that psychotic personality traits are linearly related to creative performance, and suggest that the nature of the problem determines which thinking styles are optimally equipped to solve it. (C) 2009 Elsevier Ltd. All rights reserved.

I and I: immunity to error through misidentification of the subject

Abstract I argue for the following claims: [1] all uses of I (the word ‘I’ or thought-element I) are absolutely immune to error through misidentification relative to I. [2] no genuine use of I can fail to refer. Nevertheless [3] I isn’t univocal: it doesn’t always refer to the same thing, or kind of thing, even in the thought or speech of a single person. This is so even though [4] I always refers to its user, the subject of experience who speaks or thinks, and although [5] if I’m thinking about something specifically as myself, I can’t fail to be thinking of myself, and although [6] a genuine understanding use of I always involves the subject thinking of itself as itself, whatever else it does or doesn’t involve, and although [7] if I take myself to be thinking about myself, then I am thinking about myself.

Legal outlier, again? U.S. felon suffrage: comparative and international human rights perspectives

The judiciousness of American felon suffrage policies has long been the subject of scholarly debate, not least due to the large number of affected Americans: an estimated 5.3 million citizens are ineligible to vote as a result of a criminal conviction. This article offers comparative law and international human rights perspectives and aims to make two main contributions to the American and global discourse. After an introduction in Part I, Part II offers comparative law perspectives on challenges to disenfranchisement legislation, juxtaposing U.S. case law against recent judgments rendered by courts in Canada, South Africa, Australia, and by the European Court of Human Rights. The article submits that owing to its unique constitutional stipulations, as well as to a general reluctance to engage foreign legal sources, U.S. jurisprudence lags behind an emerging global jurisprudential trend that increasingly views convicts’ disenfranchisement as a suspect practice and subjects it to judicial review. This transnational judicial discourse follows a democratic paradigm and adopts a “residual liberty” approach to criminal justice that considers convicts to be rights-holders. The discourse rejects regulatory justifications for convicts’ disenfranchisement, and instead sees disenfranchisement as a penal measure. In order to determine its suitability as a punishment, the adverse effects of disenfranchisement are weighed against its purported social benefits, using balancing or proportionality review. Part III analyzes the international human rights treaty regime. It assesses, in particular, Article 25 of the International Covenant on Civil and Political Rights (“ICCPR”), which proclaims that “every citizen” has a right to vote without “unreasonable restrictions.” The analysis concludes that the phrase “unreasonable restrictions” is generally interpreted in a manner which tolerates certain forms of disenfranchisement, whereas other forms (such as life disenfranchisement) may be incompatible with treaty obligations. This article submits that disenfranchisement is a normatively flawed punishment. It fails to treat convicts as politically-equal community members, degrades them, and causes them grave harms both as individuals and as members of social groups. These adverse effects outweigh the purported social benefits of disenfranchisement. Furthermore, as a core component of the right to vote, voter eligibility should cease to be subjected to balancing or proportionality review. The presumed facilitative nature of the right to vote makes suffrage less susceptible to deference-based objections regarding the judicial review of legislation, as well as to cultural relativity objections to further the international standardization of human rights obligations. In view of this, this article proposes the adoption of a new optional protocol to the ICCPR proscribing convicts’ disenfranchisement. The article draws analogies between the proposed protocol and the ICCPR’s “Optional Protocol Aiming at the Abolition of the Death Penalty.” If adopted, the proposed protocol would strengthen the current trajectory towards expanding convicts’ suffrage that emanates from the invigorated transnational judicial discourse.

EU membership of the WTO: international trade disputes and judicial protection of individuals by EU Courts

The European Union (EU) is embedded in a pluralistic legal context because of the EU and its Member States’ treaty memberships and domestic laws. Where EU conduct has implications for both the EU’s international trade relations and the legal position of individual traders, it possibly affects EU and its Member States’ obligations under the law of the World Trade Organization (WTO law) as well as the Union’s own multi-layered constitutional legal order. The present paper analyses the way in which the European Court of Justice (ECJ) accommodates WTO and EU law in the context of international trade disputes triggered by the EU. Given the ECJ’s denial of direct effect of WTO law in principle, the paper focuses on the protection of rights and remedies conferred by EU law. It assesses the implications of the WTO Dispute Settlement Understanding (DSU) – which tolerates the acceptance of retaliatory measures constraining traders’ activities in sectors different from those subject to the original trade dispute (Bananas and Hormones cases) – for the protection of ‘retaliation victims’. The paper concludes that governmental discretion conferred by WTO law has not affected the applicability of EU constitutional law but possibly shapes the actual scope of EU rights and remedies where such discretion is exercised in the EU’s general interest.

Why are some handaxes symmetrical? Testing the influence of handaxe morphology on butchery effectiveness

The morphology of Acheulean handaxes continues to be a subject of debate amongst Lower Palaeolithic archaeologists, with some arguing that many handaxes are over-engineered for a subsistence function alone. This study aims to provide an empirical foundation for these debates by testing the relationship between a range of morphological variables, including symmetry, and the effectiveness of handaxes for butchery. Sixty handaxes were used to butcher 30 fallow deer by both a professional and a non-professional butcher. Regression analysis on the resultant data set indicates that while frontal symmetry may explain a small amount of variance in the effectiveness of handaxes for butchery, a large percentage of variance remains unexplained by symmetry or any of the other morphological variables under consideration.

Dr John Snow and an early investigation of groundwater contamination

John Snow was a physician but his studies of the way in which cholera is spread have long attracted the interest of hydrogeologists. From his investigation into the epidemiology of the cholera outbreak around the well in Broad Street, London, in 1854, Snow gained valuable evidence that cholera is spread by contamination of drinking water. Subsequent research by others showed that the well was contaminated by sewage. The study therefore represents one of the first, if not the first, study of an incident of groundwater contamination in Britain. Although he had no formal geological training, it is clear that Snow had a much better understanding of groundwater than many modern medical practitioners. At the time of the outbreak Snow was continuing his practice as a physician and anaesthetist. His casebooks for 1854 do not even mention cholera. Yet, nearly 150 years later, he is as well known for his work on cholera as for his pioneering work on anaesthesia, and his discoveries are still the subject of controversy.