Intellectual Disability, Brain Damage, and Group-to-Individual Inferences: How the U.S. Court System Uses Neuroscience Data

Author(s): Valerie Gray Hardcastle / Language(s): English Issue: 1/2018

In this essay, I home in on the difficulties with group-to-individual (G2i) inferences in neuroscience and how they impact the legal system. I briefly outline how cognitive shortcutting can distort legal decisions, and then turn my attention to G2i inferences, with a special focus on issues of intellectual disability and brain damage. I argue that judges and juries are not situated to appreciate the nuances in brain data and that they are required to make clinical decisions without clinical training. As a result, they effectively ignore those responsibilities and simply decide cases in virtue of what they already believe to be true. How judges actually make decisions in high-stakes criminal cases is troubling, but they are also hamstrung in a variety of ways.

Die Umsetzung des römischen Privatrechts im Völkerrecht

Author(s): Carmine Galloro / Language(s): German Issue: 2/2020

The purpose of this issue is - without claiming to be exhaustive, to put in evidence the influence of Roman law and the consequent phenomenon of the reception of its private law structures into the international law system. The post-Justinian era will be used as historical element to analyze the development of ius gentium over the centuries: praetores deputed for settling cross-border disputes often resorted to that law through the iurisdictio peregrina, since they adopted in their interpretation and application activity typical instruments of ius privatorum, i.e. analogia, aequitas, interpretatio, etc. Although it was a category of ius publicum, the “international law” then regarded operational instruments based on civil elements: this is the characteristic that still fascinates today and over time was assessed and rediscovered by several lawyers.

Ehe- und Familienrecht in der byzantinischen Ekloge (8. Jahrhundert) mit Blick auf römisches, orientalisches und Kirchenrecht

Author(s): Olga A. LYSENKO / Language(s): German Issue: 2/2020

Eclogue of the 8th century is an important legacy of Byzantium law, whose innovative features not only shaped the law of Byzantium, but also had a significant impact on the evolution of law in other countries. Adopted in the era of "iconoclasm" and "legal innovation", the Eclogue was influenced by an array of legal systems, including Church law - canons of Ecumenical Church Councils, Rules of the Holy fathers of the Orthodox Church, etc. Family law and marriage norms occupy a special place in the Eclogue. The present article analyzes the main institutions of marriage and family law: betrothal, conclusion and dissolution of marriage, personal and property legal relations of spouses, legal relations of parents and children, etc. The article focuses on the factors that shaped these law inststitutions, while highlighting most relevant issues of the current scholarly debate on the topic.

Von der Folterkammer zum Rechtskundemuseum – Die Geschichte des Mittelalterlichen Kriminalmuseums in Rothenburg

Author(s): Markus Hirte / Language(s): German Issue: 2/2020

The following article highlights various facets of the Medieval Crime Museum, which is located in the heart of the middle franconian town of Rothenburg ob der Tauber. In addition to a deep insight into the museum’s history, which goes back to the end of the 19th century, the reader is given additional insights into the structure and functioning (operation) of the museum. So it is explained, how the permanent exhibition was redesigned after the turn of the century and also the important role of constantly changing special exhibitions for cost coverage. Furthermore, various new cultural mediation formats are shown, that enable the museum to compete in the leisure and wide-education offering. Finally, the article shows, which areas of tourism are covered by the Medieval Crime Museum and how these are reconciled in order to meet the wide-ranging clientele of visitors. As a tourist destination, the museum covers two fields of tourism: history tourism on the one hand and thanatourism on the other, whereby the focus is not on the “horror factor” but rather a balance between entertainment and education.

Konec českých exekucí? Policy analýza interakcí a postojů českých parlamentních stran k problematice oddlužení

Author(s): Václav Šmatera,Aneta Pinková / Language(s): Czech Issue: 2/2020

The legal framework of insolvency proceedings in the Czech Republic has long been subjected to much criticism from various kinds of stakeholders, including political parties. This policy analysis paper focuses on how this topic resonates at the parliamentary level, specifically on how it was reflected in the Czech Parliament during the adoption process of the last amendment to the insolvency act. The analysis focusing on two critical parameters of the bill is based on a detailed examination of the transcripts of Parliamentary debates, the legislative documents as well as interviews with several members of the Parliament involved in the process and provides an overview of possibilities of future development.

Ochrona poufności pacjenta z perspektywy prawa cywilnego

Author(s): Beata Janiszewska / Language(s): Polish Issue: 2/2020

The paper analyses the issue of protection of patient confidentiality by means of civil law instruments. Protection of the patient’s interests related to the preservation of medical information beyond the access of unauthorized persons can be realized primarily through the protection of the patient’s right to medical secrecy and the protection of human personal interests in the form of the right to privacy. The study presents the issue of the violation of the patient’s confidentiality and the claims to be made in connection with such violation. A wider reflection is devoted to the issue of a claim for compensation for damage resulting from the violation of the patient’s rights and the infringement of his/her personal rights, as well as the effects of the co-occurring of these claims, both in the material and procedural perspectives.

Obowiązek czy dobrowolność wyjawienia tajemnicy lekarskiej

Author(s): Maria Boratyńska / Language(s): Polish Issue: 2/2020

The relationship between the patient and medical personnel, related to the satisfying of health needs, is covered by the principle of confidentiality, and the question of possible disclosure requires a statutory basis defined in a strict manner, with the principle of minimisation also imposed by law. The wording of the statutory exceptions does not imply explicitly that the absence of the obligation to maintain secrecy is tantamount to the obligation to disclose it. As a general rule, a doctor is obliged to be discreet, while with regard to exceptions only “the provision does not apply”. The question arises whether and under what circumstances this obligation to disclose exists, and whether it can be legally enforced. There are no clear obligations for the doctor, nor for the amendment of the regulations, allowing the disclosure of medical secrets after the patient’s death with the consent of a close relative, nor the release of secrets by a court in non-contentious proceedings. The place where a doctor released from secrecy should disclose it is only the court conducting a trial in a specific case, when the doctor is summoned as a witness. Medical confidentiality therefore retains its special status, but a change that allows the court to break the patient’s previous objection to it is detrimental to the most personal legal interests of persons who can no longer feel safe with their secrets. It is also a disgrace to doctors who are being urged to break their silence, contrary to fundamental deontological principles. However, the wording of the regulations allows for evasion, dictated by loyalty to the deceased patient who entrusted his/her secrets in the trust that they will be kept even after death.

Zadośćuczynienie z tytułu naruszenia dóbr osobistych w związku z ujawnieniem tajemnicy medycznej

Author(s): Małgorzata Świderska / Language(s): Polish Issue: 2/2020

The aim of this paper is to analyze possible legal grounds for compensation of non-pecuniary loss in the case of violation of the patient’s right to medical confidentiality, expressed in the provisions of Article 13-14 of the Act on Patient’s Rights and the Patient Ombudsman of 6 November 2008 and confirmed from the perspective of the doctor’s duty in Article 40 of the Act on Professions of Physician and Dentist of 5 December 1996. In the opinion of the author, these may be general provisions relating to compensation for the harm suffered in connection with the infringement of personal goods, i.e. Article 448 of the Civil Code in connection with Article 415 and Article 416 of the Civil Code (tort regime). This legal basis is related to the requirement of proving that the violation of the right to medical confidentiality is detrimental to the sphere of personal rights in a particular case. Another basis is the provisions of Article 4 paragraph 1 of the Act on Patient Rights and the Patient Ombudsman. Citing this legal basis is - in turn - connected with the requirement to prove a culpable infringement of a patient’s rights, which may also take place when data contained in medical records are disclosed. Apart from that, it is also possible to have an alternative concurrence of claims in the case of infringement of yet another personal good (health) in connection with the occurrence of a health disorder caused by the disclosure of medical confidentiality (Article 445 of the Civil Code).

Ujawnienie tajemnicy lekarskiej w procesie karnym a odpowiedzialność karna lekarza

Author(s): Ewa Plebanek / Language(s): Polish Issue: 2/2020

The paper is devoted to the conflict between the duty to protect medical confidentiality and the interests of justice in criminal proceedings and substantive criminal law. The article contains considerations on medical confidentiality in relation to the legal and social obligation to notify authorities on the commission of a criminal act, as well as the maintenance of medical confidentiality in evidence proceedings in a situation where a doctor acts as a witness (taking into account the issues of protection of the so-called psychiatric secrecy and the secrecy of the doctor assisting the accused as regards the patient’s statements concerning the commission of a criminal act). A situation in which the obligation to keep medical secrecy limits the possibility for the depositary to exercise the right of defence is also analysed. In addition to proposals for resolving the presented conflict-of-law situations, the issue of attributing criminal liability to a doctor for the offence of not informing law enforcement authorities about the commission of a prohibited act (Article 240 paragraph 1 of the Penal Code) and the offence of disclosing professional secrecy against the provisions of the Act (Article 266 paragraph 1 of the Penal Code) in the presented conflict-of-law situations is considered.

Karnoprawna ochrona danych medycznych

Author(s): Rafał Kubiak / Language(s): Polish Issue: 2/2020

The paper shows the areas of criminal law protection of medical data, both in the context of respect for medical confidentiality and reliability of documents. The first part presents the crime of disclosing professional secrecy, styled in Article 266 § 1 of the Criminal Code. In this respect the circle of entities which may be the perpetrators of this act and its subject matter is discussed in more detail. The next section presents criminal law protection of medical data as sensitive personal data. Article 107, paragraph 2 of the Act on the protection of personal data has been exegesisated, indicating the field of penalization of the act sanctioned in it. The last fragment is devoted to protecting the credibility of medical records. It presents the scope of responsibility for the so-called certification of the truth (Article 271 § 1 of the Penal Code). It points out the shortcomings of this provision resulting from the use of the normative clause “other person entitled to issue a document” in the description of the act. Establishing this circumstance may be difficult both for a medical officer and for the bodies appointed to prosecute crimes. These problems result from the multiplicity of legal acts, of different rank, which may create such authorization. Therefore, it has been postulated that medical-legal regulations concerning exceptions to medical confidentiality and competence to issue documents containing medical data should be tidied up and unified.

Udzielanie informacji o stanie zdrowia dziecka a poszanowanie prawa do samostanowienia i prywatności małoletniego pacjenta

Author(s): Joanna Haberko / Language(s): Polish Issue: 2/2020

The article covers the issue of providing information on the state of health in a situation where the patient is a minor. Th e child does not have actual and formal possibilities to make decisions independently. The child cannot make decisions regarding treatment, but he/she may make other decisions as part of informative self-determination. The purpose of the work is to show situations where a child, regardless of age, may agree to inform other people about his or her health. The author also presents instruments to secure the right to intimacy and privacy of minor patients.

Dawstwo materiału genetycznego a rozwiązania polskiej ustawy o leczeniu niepłodności

Author(s): Kinga Bączyk-Rozwadowska / Language(s): Polish Issue: 2/2020

Since the procedures of medically assisted procreation (such as insemination or in vitro fertilization) carried out with donated gametes have become common, the problem of protecting donors and children has arisen. Donors needed the protection of their right to respect for family and private life, whereas children needed the proper assimilation with a new family, based on social bonds. Initially, most countries introduced, as a basic rule, the principle of anonymity of gamete and embryo donation (the so-called traditional model). According to the anonymity rule, a child conceived via medically assisted procedures does not have access to information about the donor’s identity, and vice versa. However, due to the increasing importance of the right to know one’s genetic origin, many countries decided to change the law and allow the child and the donor access to the donor conception register (the socalled liberal model). The Polish Act on Infertility Treatment of 2015 adopted the traditional model, with a few modifications. Opinions on the new regulation differ, and there is an ongoing discussion in the literature concerning in particular the confidentiality of the donor’s identifying data.

Tajemnica medyczna po śmierci pacjenta w wybranych systemach civil i common law

Author(s): Katarzyna Bagan-Kurluta,Urszula Drozdowska / Language(s): Polish Issue: 2/2020

The paper presents problems related to medical confidentiality after the patient’s death. The reasons for the waiver of this secret need to be considered. To this end, the authors analysed Polish regulations of medical law and then compared them to selected European regulations: French and English law. The inspiration for describing these two legal orders were two media-highlighted cases of the publication of medical diaries after the deaths of people holding the highest state offices: Lord Moran and Dr. Claude Gubler. The first doctor published his memoirs concerning the state of health of the English statesman of World War II – Winston Churchill, while the second published his memoirs after the death of the French President – François Mitterrand. The authors describe the reaction of the law to these breaches of secrecy after the deaths of the patients, and confront them with the current regulations. The whole is crowned with conclusions resulting from the comparison of Polish, French and English law. The paper uses the dogmatic-legal and comparative methods.

Tajemnica medyczna w prawie francuskim

Author(s): Wiktoria Danilewicz-Prokorym / Language(s): Polish Issue: 2/2020

The article deals with medical confidentiality in French law. It describes its roots and current legal form based on the provisions of the French Penal Code and the Public Health Code. The article, referring to the current legal regulations and jurisprudence, characterizes the subjective and subjective scope of medical secrecy by analyzing in detail the entities obliged to keep it and its content. The text lists exceptions to the obligation of medical secrecy and attempts to characterize the concept of “common medical secrecy”. Part of the study is also devoted to the doctor’s relations with third parties and medical secrecy after the patient’s death.

Ochrona tajemnicy medycznej w e-zdrowiu

Author(s): Katarzyna Konopka / Language(s): Polish Issue: 2/2020

This article exposes legal and moral concerns regarding medical privilege and safety of patients’ medical data in association with the area of eHealth. Digital technology in modern society provides unbelievable opportunities for patients, but also challenges for their privacy. The availability and incorporation of digital technology in almost every aspect of life provides not only opportunities, but also challenges. The security of medical information in the context of medical privilege seems to be at risk, especially in the mHealth area. This article focuses on the emerging privacy issues regarding medical privilege in eHealth. The article analyzes the framework for eHealth in the Polish legal system, with consideration of current legal acts, in relation to medical privilege and security of patients’ data, especially in m Health and the Internet of Things. Due to the delicate nature of information about patients in medicine, it is strongly needed to balance the safeguarding of data and privacy with the development of eHealth.

Tajemnica medyczna a RODO

Author(s): Joanna Zaremba / Language(s): Polish Issue: 2/2020

The work of the doctor and other health professionals is closely related with access to information on the health of patients. The disclosure of such information leads to many consequences. It also violates the privacy of the patient.The obligation to maintain medical confidentiality is regulated by law, and is based on the ethics of the medical profession. Regulations that regulate the principles of medical confidentiality are contained in the Act of 5 December 1996 on the professions of doctor and dentist. Information on the health of patients is covered by special confidentiality, because these are specific data requiring confidentiality. The information that relates to the patient and is obtained during medical work, including data on the patient’s life or property, are medical secrets. There are a few exceptions for which the doctor may be released from medical confidentiality. These include consent of the patient him/herself, consent resulting from the act and removal of medical confidentiality in the case of danger to the patient or other persons, and with the consent of public authorities. It is very important to consider the protection of personal data, including sensitive data, which includes medical data contained in the provisions of the GDPR. This regulation comprehensively regulates the issues of personal data protection, also including medical confidentiality, by prohibiting the processing of patient data by medical entities without authorization. The purpose of this article was to analyze the correlation between regulations relating to medical confidentiality and the provisions of the GDPR, which are new tools for the protection of personal data. The article discusses issues regarding the subject scope of medical confidentiality, exemption from its behaviour, and liability for possible violations.

Tajemnica medyczna a prawo osoby bliskiej pacjenta do informacji medycznej – przyczynek do dyskusji

Author(s): Marta Jabłońska / Language(s): Polish Issue: 2/2020

The purpose of this article is to attempt to present the institution of medical law, which is medical confidentiality, to define it, to highlight the most important features, and then to contrast it with the right to medical information of a relative of a patient, as a law competing with the need to maintain medical confidentiality. The work begins with a description of the right to privacy as a source of medical confidentiality. Then, an attempt is made to determine the subjective and objective scope of confidentiality obligations imposed on entities providing medical services, while indicating the situations in which this obligation is lifted. Medical secrecy is presented as the obligation of medical personnel reflecting the patient’s right to information, with particular emphasis on the right to access medical records. The thesis was made that the patient is the only holder of information about him/her who has the right to voluntarily extend this right to other entities by authorization. In opposition, specific legal norms have been articulated for these considerations, which give the right to medical information on the patient’s state of health to those close to him/her, without the consent or knowledge of the person concerned. Particular attention is paid to the regulations regarding the application of medical confidentiality after the patient’s death. In the course of the argument, doubts related to the correctness of introducing the discussed provisions into the Polish legal system are indicated.

Obowiązek udzielenia informacji prasie a tajemnica medyczna

Author(s): Aleksandra Cekała,Artur Nowak / Language(s): Polish Issue: 2/2020

Medical confidentiality is a legally regulated principle of professional ethics, which not only protects patients from the disclosure of their confidential data, but also constitutes limitations on the possibility of transferring information between healthcare providers and the press. This article has two main objectives. To show the impact of medical confidentiality on journalistic activities, in particular on the procedure of providing information to the press as part of a press inquiry. The second goal is to display to both sides of the conflict of interest certain patterns of correct behaviour, and their rights and duties towards not only each other, but also the patient.

EU Policies on Preventing and Combating against Violence against Women

Author(s): Zorica Saltirovska / Language(s): English Issue: 1-2/2015

Propaganda in a function of a systemic instrumentalization of media for ultra-nationalist purposes

Author(s): Aleksandar Filipović,Ivana Spaić / Language(s): English Issue: 3/2020

Propaganda and its elements are an inseparable part of everyday life. In a digital age, when, in every second, a vast amount of information is exchanged, the possibilities and variations of propaganda techniques application are proportionally high. The majority of these propaganda messages that can be seen every time we turn on a device, or just go outside and look around are the messages of economic propaganda. Every time we hear a speech of a corporate or government official, we hear a carefully created and delivered message put together by public relations experts, which as well, by its genesis, belongs to propaganda. Still, the subject of this paper is propaganda, which is much more malicious in its origins and manifestations, and that is propaganda for ultranationalist purposes. In this paper, the authors first consider the etiological and historical aspects of propaganda focusing on those forms that had the most devastating effects. Propaganda predates mass media, but it is their conjunction that helped propaganda to reach a maximum capacity of its impact. Therefore, the authors analyze the correlation between propagandists, propaganda, and mass media.