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Chapter two considers the interwoven interests of individual participants, collectives interests and the wider public interests in research using linked data. The chapter discusses the research participants interests including dignity, autonomy and privacy and the traditional approaches to protecting them — consent and anonymisation — and concludes that these do not operate to effectively to protect individual interests in this context. Research using linked data can also have impacts, both beneficial and harmful on others, including socio-demographic groups, disease groups and the wider community and these should be explicitly recognised and evaluated by decision makers. The current legal and ethical regulation of data linkage research are critiqued for being too individualistic and alternative approaches are discussed.
Predictive policing, the practice of using of algorithmic systems to forecast crime, is heralded by police departments as the new frontier of crime analysis. At the same time, it is opposed by civil rights groups, academics, and media outlets for being ‘biased’ and therefore discriminatory against communities of color. This paper argues that the prevailing focus on racial bias has overshadowed two normative factors that are essential to a full assessment of the moral permissibility of predictive policing: fairness in the social distribution of the benefits and burdens of policing as well as the distinctive role of consent in determining fair distribution. When these normative factors are given their due attention, several requirements emerge for the fair implementation of predictive policing. Among these requirements are that police departments inform and solicit buy-in from affected communities about strategic decision-making and that departments favor non-enforcement-oriented interventions.
Social networking services provide services in return for rights to commercialize users’ personal data. We argue that what makes this transaction permissible is not users’ autonomous consent but the provision of sufficiently valuable opportunities to exchange data for services. We argue that the value of these opportunities should be assessed for both (a) a range of users with different decision-making abilities and (b) third parties. We conclude that regulation should shift from aiming to ensure autonomous consent towards ensuring that users face options that they will use to advance individual and common interests.
This chapter begins by introducing a number of foundational concepts, which serve as the starting point in the field of public international law. Section 1 of this chapter begins with the notion that states are sovereign equals, which must consent to be bound by nternational law. This section also introduces the critical distinction that international law makes between states and “non-state actors.” Section 2 of this chapter discusses the inevitable comparison of public international law with domestic legal systems, and the significant limitations of this analogy as a means for understanding the field of public international law. Section 3 concludes by explaining this book’s overarching structure, as well as the approach of this book to the introduction of public international law.
This chapter focuses on the rules set out in the 1969 Vienna Convention on the Law of Treaties (VCLT). The chapter begins with the concept of a treaty, before discussing treatymaking, with a particular focus on the conclusion of treaties, their entry into force, and reservations to treaties. The chapter then delves into how treaties operate -- namely, their scope of application and their interpretation. Finally, this chapter looks at the invalidity, suspension, and termination of treaties.
This article discusses the troubled relationship between contemporary advertising technology (adtech) systems, in particular systems of real-time bidding (RTB, also known as programmatic advertising) underpinning much behavioral targeting on the web and through mobile applications. This article analyzes the extent to which practices of RTB are compatible with the requirements regarding a legal basis for processing, transparency, and security in European data protection law.
We first introduce the technologies at play through explaining and analyzing the systems deployed online today. Following that, we turn to the law. Rather than analyze RTB against every provision of the General Data Protection Regulation (GDPR), we consider RTB in the context of the GDPR’s requirement of a legal basis for processing and the GDPR’s transparency and security requirements. We show, first, that the GDPR requires prior consent of the internet user for RTB, as other legal bases are not appropriate. Second, we show that it is difficult—and perhaps impossible—for website publishers and RTB companies to meet the GDPR’s transparency requirements. Third, RTB incentivizes insecure data processing. We conclude that, in concept and in practice, RTB is structurally difficult to reconcile with European data protection law. Therefore, intervention by regulators is necessary.
Any assessment of the international investment regime and its legitimacy crisis requires a preliminary understanding of their important and relevant features. However, the sprawling nature of both defies most doctrinal and qualitative attempts at description. The regime is based on a decentralized network of legal instruments, different procedural mechanisms and ad hoc proceedings, while the accompanying chorus of critique and counter-critique is populated with multiple actors and interests across the world. This chapter seeks to capture this distinct and fragmented universe. First, the authors map consent to arbitration, not on a generic per signed bilateral investment treaty basis, but rather by tracking multilateral, bilateral and unilateral consents in force. Second, they provide a description and overview of the over 1,100 registered cases up to January 2020, focusing inter alia on case outcomes, rules, cases types, institution, parties, economic sector and legal basis. Third, they trace discontent with regime, charting the origin of legitimacy crisis and its maturing over time. It ends by discussing both state-led efforts at reform and the extent to which arbitrators themselves have adjusted reflexively to the backlash.
This chapter discusses the political, professional and legal aspects of non-medical prescribing from its inception in the 1990s to the present day. It considers important legal cases that illustrate the key issues of autonomy, negligence and consent and illustrates how these scenarios can impact on prescribing practice on a daily basis. The role of professional regulators is highlighted and the notion that patients/clients are no longer subservient to benign medical paternalism but rather are seen as consumers of healthcare is considered. New educational aspirations are mentioned with a reliance on evidenced-based practice and a holistic humanised approach to care delivery
This chapter provides a basis for nursing students to understand the ways in which children and young people’s rights are upheld in Australia and New Zealand, particularly within the healthcare systems. It provides insight into the ways in which human rights, and particularly child rights, inform paediatric nursing policy and practice. It begins by looking at the international agreements and covenants regarding the protection of child rights that have been endorsed by Australia and New Zealand, before moving on to examine the national legislation and the implications for health and social support systems. The second part of the chapter looks at some of the ethical challenges regarding child and family rights that you will consider as a paediatric nurse. In particular, we look at issues surrounding access to family, advocacy and consent to treatment of specific diseases in some situations. It provides a basis for understanding the way in which children and young people’s rights – including the right to be protected from all forms of violence and neglect – are upheld in Australia and New Zealand, particularly within the health and welfare systems.
I argue that lying in business negotiations is pro tanto wrong and no less wrong than lying in other contexts. First, I assert that lying in general is pro tanto wrong. Then, I examine and refute five arguments to the effect that lying in a business context is less wrong than lying in other contexts. The common thought behind these arguments—based on consent, self-defence, the “greater good,” fiduciary duty, and practicality—is that the particular circumstances which are characteristic of business negotiations are such that the wrongness of lying is either mitigated or eliminated completely. I argue that all these “special exemption” arguments fail. I conclude that, in the absence of a credible argument to the contrary, the same moral constraints must apply to lying in business negotiations as apply to lying in other contexts. Furthermore, I show that for the negotiator, there are real practical benefits from not lying.
In the face of current perplexity and debate about the nature of the republican tradition, this chapter recalls and more fully recovers the republican aspects of Cicero’s political philosophy. The creators of the American Republic, especially John Adams, and many others including contemporary scholars, have looked to Cicero as a major figure, if not the founder, of the republican tradition. Analysis of Cicero’s definition of res publica provides the basis for an interpretation that at its core is consent, not necessarily formal and explicit, implying liberty. To be fully human is to be free, and to be free is to be a consenting partner in a political community that is just and at liberty to set its own course. A dynamism toward equality coupled with the necessary wisdom and virtue and their implication of inequality are also essential to Cicero’s republicanism. These essentials are to inform institutions and practices. The practical wisdom in institutions includes the rule of law, indirect rather than direct popular government, and mixed government. Roman (and thus Ciceronian) republicanism can be differentiated in some respects from that very self-conscious and much-heralded form of republicanism that developed in the America of John Adams.
This chapter presents a critical overview of mental capacity in the law of England and Wales, focusing on criminal law, mental health law and mental capacity law and the right to refuse medical treatment. It demonstrates the very different underlying philosophies of the Mental Health Act (MHA) 1983 and Mental Capacity Act (MCA) 2005 and demonstrates that concepts of capacity in the criminal law are out of keeping with current understandings of mental disorder and with the MCA 2005. This is followed by an examination of the special powers to detain and treat mentally disordered offenders under the MHA 1983. Finally, proposals to modernise the criminal law and mental health law are evaluated. It is argued that these reform proposals would go some way towards resolving the problems identified but they do not fully address the challenges of the UN Convention on the Rights of Persons with Disabilities.
Defensive medicine may be an instinctive reaction, but like many primeval reactions, it may not come cheaply. And rather than the monetary cost, which is known to all, one refers here to loss of the pleasure of practice, the depersonalization of the patient and the self-destructive constant paranoid deliberating. The honest advice, which comes after 40 years’ experience in the field, is to practice evidence-based medicine and keeping updated with advances in the medical, legal, ethical and technological spheres. Practitioners must take pride in their work and rejoice that they have done well.
In Territorial Sovereignty: A Philosophical Exploration, Anna Stilz argues that legitimate political authority requires the actual—rather than hypothetical—consent of the governed. I argue, however, that her analysis of that consent is inconsistent, in the weight it ascribes to the felt desire to refrain from doing politics with some particular group of people. In the context of secession and self-determination, the lack of actual consent to shared political institutions is weighty enough to render such institutions presumptively illegitimate. In the context of migration, however, a lack of actual consent to the presence of newcomers is ascribed nearly no weight, and instead is taken as evidence of irrationality or immoral preferences. I argue that this apparent contradiction must be clarified before Stilz's overall account of self-governance can be accepted.
Human genetic and genomic information (HGI) is being generated, utilized and accessed across a wide range of healthcare settings. While traditionally clinical genetics services have maintained guardianship and enforced rigid protections of human genetic information, this is no longer practical or feasible as genetic knowledge continues to evolve, expand and inform various aspects of healthcare. Today, many healthcare professionals of varied backgrounds and areas of expertise are looking to genetic and genomic information to screen and/or diagnose genetic conditions and to guide medical management and treatment options. This position statement provides guidance for all healthcare professionals who may be handling human genetic and/or genomic information as part of their practice and outlines considerations relevant to protection, storage, access and sharing of HGI in Australasia. Illustrative cases are used to highlight various sensitivities of genetic and genomic information and challenges these may pose in modern healthcare settings. In essence, this position statement seeks to highlight and advocate for both individual interests as well as the interests of the broader family network.
Consent is the issue at the heart of Chapter 3. Peine forte et dure was necessary simply because the English court system required a defendant’s consent before he might be submitted to trial by jury. Without his consent, justices could not proceed to trial. This chapter asks why did English justices see consent as vital, especially when other Europeans did not? It explains that consent was a traditional part of English legal culture, signaled by a defendant’s choice of proofs (compurgation, ordeals, battle). In choosing a method of proof, an accused felon recognized the court’s authority in the matter, and consented to abide by its decision. With the transition from proofs to trial (by jury) that began under Henry II and coalesced with Lateran IV’s abandonment of the ordeal, a defendant’s rights were whittled away. These changes took place against the backdrop of the twelfth-century legal revolution that championed a defendant’s natural rights to legal protection. Thus, while the English may have protested the loss of choice through silence, justices needed a solution that respected both English heritage and a defendant’s rights. That solution was peine forte et dure.
This chapter defends the existence of negligence, understood here as a form of inadvertent moral wrongdoing for which the wrongdoer is presumptively and non-derivatively responsible and blameworthy. The wrong in question is failure of due care. This common-sensical claim needs defense in view of widespread skepticism about the possibility of non-derivative inadvertent wrongdoing. A major source of this skepticism is the conviction that all wrongdoing must ultimately derive from intentional or knowing violations.
The standard way to distinguish between negligence and recklessness is in terms of the agent’s awareness of the risk he is taking. An agent who knows that there is a risk of harm is reckless, an agent who does not know (leaving aside for now whether the belief is reasonable or not) is negligent. Antony Duff argues that we should amend this slightly – What renders an agent reckless is not caring enough about a risk. Duff’s amendment suggests, very plausibly, that mere lack of awareness is not what really matters morally. What matters, rather, is why an agent is not aware. This is taken for granted in the background conditions for negligence – which, for example, should be distinguished from stupidity. An agent may not be aware of a risk because she is not cognitively capable of such awareness. The background condition for negligence is that an agent could have been aware of the risk, but is not. So if an agent could have been aware of a risk, but is not because she was too lazy to look out the window, or check her calendar, or whatever, if, in other words, the reason that she is not aware of the risk is that she does not care enough, she should count as acting recklessly rather than negligently. I argue that there is something in Duff’s view to be rescued here. The rapist who does not understand or accept sexual refusal is not reckless if he has no awareness at any level of the relevant descriptive and normative facts. However, he should not be seen as negligent either. The structure of the situation is such that his ignorance is systematic, not one off. I argue that it is an important feature of negligence that it is one off, that it is not connected to a system of oppression. This gives us a justification for moralizing the ‘reasonable belief’ requirement in sexual consent cases. Even when a belief is reasonable by epistemic standards, it may be unreasonable by moral standards. The overall point here is that in a society riven by sexism, the essential definition of rape must advert to reasonable moral beliefs rather than reasonable epistemic beliefs.
Privacy in public is a form of informational privacy. Informational privacy consists in the ability to control what others do with your information. You lack that control if you cannot give free and informed consent to how others process your information. How does one ensure free and informed consent across a sufficient range of cases? Our answer is that informational norms ensure that. That is not, however, the dominant legislative and regulatory answer, which is Notice and Choice. The Notice is a presentation of the terms governing the use of information. The Choice is an action signifying acceptance or rejection of the terms. Chapter 5 argues that Notice and Choice is clearly fails to ensure free and informed consent, and concludes that maintaining and creating norms is the most reasonable alternative.
This chapter describes the content and protection of the right to life with respect to both euthanasia (active and passive, as well as voluntary, non-voluntary, and involuntary) and suicide, including assisted suicide. In most States, euthanasia is punishable as murder. But State practice is evolving, gradually, towards more permissive regulation of either euthanasia or assisted suicide or both.