BIOETHICS: THE SUBJECT, PURPOSE AND OBJECTIVES OF THE HEALTH CARE SYSTEM. BIOETHICS BIOMEDICAL EXPERIMENTS. INTERNATIONAL DOCUMENTS ON BIOETHICS AND HUMAN RIGHTS.
Theoretical bioethics deals with the intellectual foundations of the ﬁeld. What are its moral roots and what ethical warrant can be found for the moral judgments made in the name of bioethics? Part of the debate turns on whether its foundations should be looked for within the practices and traditions of the life sciences, or whether they have philosophical or theological starting points. Philosophers and theologians have a central place in this enterprise, but draw strongly upon the history and practices of the life sciences to grasp the aims and developments of these ﬁelds.
Clinical ethics refers to the day-to-day moral decision making of those caring for patients. Because of that context, it typically focuses on the individual case, seeking to determine what is to be done here and now with a patient. Should a respirator be turned off? Is this patient competent to make a decision? Should the full truth be disclosed to a fearful cancer patient? Individual cases often give rise to great medical and moral uncertainty, and they evoke powerful emotions among those with a role in the decisions. Decision-making procedures, as well as the meld ing of
GENERAL QUESTIONS OF BIOETHICS
While bioethics as a ﬁeld may be understood in different ways and be enriched by different perspectives, at its heart lie some basic human questions. Three of them are paramount. What kind of a person ought I to be in order to live a moral life and to make good ethical decisions? What are my duties and obligations to other individuals whose life and wellbeing may be affected by my actions? What do I owe to the common good, or the public interest, in my life as a member of society? The ﬁrst question bears on what is often called an ethic of virtue, whose focus is that of personal character and the shaping of those values and goals necessary to be a good and decent person. The second question recognizes that what we do can affect, for good or ill, the lives of others, and tries to understand how we should see our individual human relationships—what we ought to do for others and what we have a right to expect from them. The third question takes our social relationships a step further, recognizing that we are citizens of a nation and members of larger social and political communities. We are citizens and neighbors, sometimes acquaintances, and often people who will and must live together in relatively impersonal, but mutually interdependent, ways.
These are general questions of ethics that can be posed independently of the making of biomedical decisions. They can be asked of people in almost any moral situation or context. Here we encounter an important debate within bioethics. If one asks the general question “What kind of person ought I to be in order to make good moral decisions?” is this different from asking the same question with one change—that of making “good moral decisions in medicine”? One common view holds that a moral decision in medicine ought to be understood as the application of good moral thinking in general to the speciﬁc domain of medicine (Clouser). The fact that the decision has a medical component, it is argued, does not make it a different kind of moral problem altogether, but an application of more general moral values or principles. A dutiful doctor is simply a dutiful person who has reﬁned his or her personal character to respond to and care for the sick.
HISTORICAL BACKGROUND FOR BIOETHICAL APPROACH
(14 January 1875 – 4 September 1965) was a German and then French theologian, organist,
philosopher, physician, and medical missionary. He was born in Kaysersberg
Scientists (T. Bosham and J.Vitch. Chayldress, A.J. Ivanyushkin, B.G. Yudin and other) are marked much, that a hodegetics, based on traditions of ethics of Hippocrates, does not answer spiritually-intellectual, political and economic features and queries of development of modern society today. English scientist-biotic R. Vitch sees reasons of such disparity in that:
• a traditional hodegetics is corporate ethics the action of which is limited to mainly the scopes of the proper professional society;
• ethics of Hippocrates is built on the idea of paternalism (from Lat. pater is a father), which orders and allows a doctor to come forward as a "father", tutor, irrefutable authority in relation to a patient (or to the medical corporation in relation to society);
• not "harm" principle is not sufficient for adjusting of relations of doctor and patient (medical concord and society on the whole), as does not answer the necessities of the ethics setting of norms in connection with development and application of global biomedical technologies;
• ethics of Hippocrates does not contain sufficient grounds in order to ratify principle of respect of autonomy of patient, interests of doctor prevail over interests of patient.
INFORMED CONSENT: CONDITIONS AND EXCEPTIONS
According to the Nuremberg Code, to consent to participate in research one must: 1. be “so situated as to be able to exercise free power of choice”; 2. have the “legal capacity” to give consent; 3. have “sufﬁcient … comprehension” to make an “enlightened” decision; and 4. have “sufﬁcient knowledge” on which to decide.
A new ethics theory must be based on four concepts: first is independence, second is rationality, third is responsibility, fourth is realism.
1. Sokrat declared yet, that ethics which is based on a mind must be independent. He is apt at self-regulation without interference of external factors. But what these external factors? Foremost, religion. Yet Sokrat, in order to avoid this form of interference, spread a moral on those gods. It was confirmed during ages, that ethics after the nature was not religious, therefore it submits exceptionally to the mind. Such ethics rationalism was taken to the extreme forms by Kant, which repeated over and over again that a «practical mind», if to interpret him as basis of ethics, did not depend on any knowledge, religious or speculative. Except for religion, ethics must be independent similarly and from a policy, from a right and from science. If ethics depends on the last, scientism and positivism appear, and within the limits of term «bioethics» of value, that is given «ethos», would be the value of ethics not independent, but dependency upon biology and medicine. Why must ethics be autonomous? For this question will find an answer during a further analysis.
2. Basis of Socrate ethics is rational. A mind exists and develops as selfmeasured principle. However described development of ethics idea was inefficient ethics theories which was founded at liberty, passions and senses. Therefore there is possibility to ground new ethics on a base not mind, but will. What to do a choice? In my opinion, it is necessary to do a choice in behalf of mind, at least on one important reason: through a mind it is possible to attain óíèâåðñàëèé. Universal ethics is able to enter in human society in all of the globalness and so to send problems, descendant technological application of biomedical sciences, that to give humanity, to confused and disturbed, necessary rest and possibility confidently to look forward.
3. Responsibility originates from an autonomy and rationality. Not clear in Sokrata, but afterwards well certain Plato, responsibility is meant by ability in everything responsible for the actions. Plato writes «Republics» in Book: «Everybody is responsible for an own choice! God is not guilty, and we are the unique creators sew on fates through the choice of way of life». A concept «responsibility», which manages classic ethics, again appears in modern ethics opinion substantially changed. Unlike an old concept which responsibility was based in on eternity and transcendentness, presently it touches time — not only contemporaneity and the nearest future but also (foremost) distant future. Our responsibility must spread on the distant future in an order to protect humanity from the danger of sciences which study the body of man: a survival of humanity in the future is the result of this responsibility. It new interpretation of responsibility is a merit of G.Yonase. That responsibility could serve all presently and always, it must lean against a mind and on óíèâåðñàëèè and begun with a realistic look.
4. Realism is meant by ability to accept that indeed exists, see the terms of life and existence such, what they are, in their tragic and full of sufferings of essence. The real can show up through gladness, but it not that other, as the back of suffering. In history of ethics thought realism is a theory which is divided by a little bit of philosophers. In particular, he was supported by Shopengauer and Nicshe. In our time realism regenerates again and characterizes an alarm, descendant technological application of biomedical sciences.
We will summ four concepts, which new ethics must lean against.
- Rationality, that mind, enables it to attain universals — necessary condition for adjusting of problems, broken biomedical sciences.
- Responsibility does a man the judge of the choice and obligates it to protect the future of humanity.
- Realism opens it eyes on such reality which it is, that on sufferings and tragedies.
In modern medicine it is heavy to expose such areas which scientific and technological progress would not touch. Exactly under his action the traditional problems of hodegetics are transformed in the problems of bioethics.
ETHICS COMMITTEES AND THEIR ROLE IN DECIDING ON BIOMEDICAL RESEARCH
In XX century medical activity is regulated two forms of the social adjusting — moral and right. The of principle difference of the legal adjusting of human relations from moral consists in that the legal adjusting will be realized through laws, governmental decisions, court decisions. While the moral adjusting is carried out at the level of individual moral consciousness and public opinion. «Interest actually moral, — V. l. Solovyov wrote, — behaves directly not to external realization of good, but to his internal existence in a heart human». Such localization of moral requirements supposes their free and voluntarily execution, opposite, the legal assume requirements or direct, or indirect compulsion.
International and Regional Procedures
International and regional human rights mechanisms play an important role in the implementation of rights. These mechanisms were established to enforce governments’ compliance with the international and regional human rights treaties they have ratified. These treaties make up the so-called “hard law” of international human rights, and the interpretations of the treaty mechanisms make up “soft law” that is not directly binding on governments. There are two main types of enforcement mechanisms:
· courts, which act in a judicial capacity and issue rulings that are binding on governments in the traditional sense; and
· committees, which examine reports submitted by governments on their compliance with human rights treaties and, in some cases, examine individual complaints of human rights violations.
The International System Human Rights Committee
The Human Rights Committee (HRC) oversees government compliance with the International Covenant on Civil and Political Rights (ICCPR). The HRC has two mandates: to monitor country progress on the ICCPR by examining periodic reports submitted by governments and to examine individual complaints of human rights violations under the Optional Protocol to the ICCPR.
CIVIL SOCIETY PARTICIPATION
· Under the original procedure, which was replaced in 1998, the initial stages of the case took place before the European Commission on Human Rights. If you are researching a particular topic under the convention case law, remember to search for reports by the commission and also for court judgments.
· If the six-month period within which an application must be submitted is about to expire, and there is no time to prepare a full application, you can send a “stop the clock” application with a short summary of your complaint, which should be followed by the complete application as soon as possible.
· For the purpose of respecting the deadlines set by the court, keep in mind that the court considers the date of posting—not the date of receipt—as determinative. It is advisable, however, to notify the court on the day of the deadline that the submission has been posted, either via email or telephone or by faxing a copy of the application cover letter.
· The court may, on its own initiative or at the request of one of the parties, obtain any evidence it considers useful to the case, including by holding fact-finding hearings. Where such measures are requested by one of the parties, that party will normally be expected to bear the resulting costs, although the chamber may decide otherwise. If you do not wish to bear such costs, it is advisable to word your letter carefully—for example, suggest to the court that it might wish to exercise its discretion to take measures to obtain evidence.
· The court carries out most of its regular work in chambers of seven judges. Where a case is considered to raise a serious issue or might involve a change in the views of the court in relation to a particular subject, it can be referred to a grand chamber of 17 judges. Where a case has been considered by a chamber and a judgment delivered, it is possible, in exceptional cases, to request within three months of the judgment that the case be referred to the grand chamber for reconsideration (Rule of the Rules of Court).
As of June 1,
· In accordance with Protocol 14 to the ECHR, the Council of Europe Commissioner for Human Rights may submit written comments and take part in hearings in all cases before a chamber or the grand chamber (Article 13, amending Article 31 of the ECHR). This factor becomes significant in cases where the commissioner’s experience may help the court by highlighting structural or systemic weaknesses in the respondent or other high-contracting parties (Article 13 of the protocol).
· It is possible to request the interpretation of a judgment within one year of its delivery (Rule 79 of the Rules of Court). It is also possible to request, within six months of the discovery, the revision of a judgment if important new facts are discovered that would have influenced the court’s findings (Rule 80 of the Rules of Court).
STATUS OF INTERNATIONAL AND REGIONAL LAW
Since 1991, the legal system of the independent
Ukrainian state has ndergone major changes.
According to Article 9 of the Constitution of Ukraine,
current international treaties ratified by the Verkhovna
Having become a member of the European and World
Very important is
Every member of the CE, including
One of the key regional standards of the CE, as it has
been mentioned, is a Convention on human rights and fundamental freedoms
(1950), ratified by
To regulate the relations, that arise from the state obligation to fulfill the judgment of the European Court of Human Rights in cases against Ukraine, together with the necessity to exclude the reasons for breach of the Convention on human rights and fundamental freedoms and its protocols by the Ukraine, implementation into Ukrainian legal proceedings and administrative practice the European standards of human rights, creation of necessary prerequisites to decrease the number of complaints to the European Court against Ukraine there had been adopted the law of Ukraine “On Execution of the judgments and implementation of practice of the European Court of Human Rights” of February 2, 2006.
To secure observance of the conventional provisions by our State, that were determined in the judgment against Ukraine*, exclude the drawbacks of a systematic character, that form the basis of the established infringement, and to exclude the grounds for submitting complaints against Ukraine to the European Court, caused by the problem, that had already been a subject of consideration in Court, measures of general character are taken. They include: a) making amendments to the current legislation and practice of its application; b) making amendments to the administrative practice; c) provision of legal expertise of the draft laws.
In Ukraine there is conducted a constant and periodical verification of current laws and by-law acts, as regards their conformity to Convention and practice of the European Court of Human Rights and European Commission of Human Rights, namely in sphere that concern operation and functioning of law-enforcement bodies, criminal procedure, deprivation of liberty. Due to the resultsof such verifications, a body responsible for representation of Ukraine in the European Court of Human Rights and execution of its judgments (Ministry of Justice through Governmental authorized in the European Court), submits to the Cabinet of Ministers proposals as regards making amendments to current laws and by-law acts in order to make them in conformity with the requirements of the Convention and practice of the Court.
Case law in
With the adoption of the Law of Ukraine “On
Implementing Decisions and Applying Procedures of the European Court of Human
Rights” of February 23, 2006, which in Article 17 states that courts use in
their practice the Convention on Human Rights and Fundamental Freedoms
(hereafter the Convention) and Court practice, understood as a source of law,
the situation started to change. The analysis of fundamental positions taken on
this issue gives grounds to state that in
LEGAL AND HEALTH SYSTEMS
Legal system of
Analogy of law and analogy of the law. When realizing legal norms law-enforcement body sometimes faces the loopholes in legislation, that is a complete or partial absence of norms regulating legal relations.In connection with this there had been worked out means of eluding the loopholes in the process of law enforcement. That means were named an analogy. There are the following types of analogy.
Analogy of the law – the case or certain legal issue is solved using legal norm that regulates similar issues. Application of an analogy is forbidden if, it is directly prohibited by the law, or if the law associates the appearance of certain legal consequences with availability of specific norms.
Analogy of law – the case or certain legal issue is solved on the basis of legal principles, general basics and content of the legislation.An analogy is not used in the sphere of criminal legislation and legislation on administrative offences.
According to the Letter of Ministry of Justice of
Health Care system
The Law of Ukraine “Principles of Ukrainian Health
Care Legislation” enforces the principles of the health care system of Beveridge (English model), which are gradually implemented
both in legislative and in medical practice and are manifested in family and
private health care, insurance, multi-source financing, high social standards. Managment of the health care system is carried out by the
Ministry of Health of
History of culture is presented in a number of various theories in relation to nature of moral obligations and moral values. Such variety is related to possibility of choice of different initial grounds at explanation of essence, nature, functions of moral and moral relations. The difference of initial grounds is taken in the logical limit to two types of ethics theories. The first type of ethics theories is linked by the decision of moral-ethic problems with Divine Revelation. For the second type the denial of this connection and aspiration to treat principle of expedience and benefit is characteristic. Logical opposition of two types of ethics theories accepted different forms in history of culture, and theories were named variously. The first type of ethics theories got the names «authoritarian», «religious», «deontological» ethics. Contacted the second with ethics «naturalistic», «pragmatic». The naturalistic-pragmatic type of ethics theories is presented in history of culture tradition on the East, right kinic hedonism in antiquity, ideologists of «naturalness» of human nature,, morals in New time, by pragmatism, utilitarianism in a modern culture. Positive maintenance to any of the transferred conceptions within the framework of this type disposed between two positions. Initial, as a rule, there is confession of «priority» of reality of natural necessities or needs, social interests of man, which are a «base» for the train of changing each other values and ideals. Eventual position at this initial is inevitably become by nihilizm, I.e. denial of reality of the ideal measuring of human relations. Value of «mercy», «love», «anxiety», «compassions» are deprived and examined as more or less successfully in-use facilities for achievement of the put aims and satisfaction of interests of vying «wills». «Benefit» and «blessing» become the criteria of morality of conduct and act, here «blessing» interpreted as a benefit for maximally plenty of people. Obviously, that a benefit is different. In the list of possible, again within the framework of this type of ethics studies, lead a place a benefit occupies economic. Simple economic calculations result in a conclusion, that a «patient is a parasite of society». Exactly this judgement becomes initial and determining in a that new «moral for doctors», which is offered by F.Nicshe. In his philosophy of logician of naturalistic-pragmatic ethics presented most consistently. In the 36th fragment of «Twilights of idols» Nicshe writes: «Moral for doctors. A patient is a parasite of society. In the known state improperly to continue to live. Vegetating in cowardly dependence on doctors and artificial measures since sense of life, right, is lost on life, must cause the deep contempt of society. It would follow doctors to be mediators in this contempt are not recipes, but every day new dose of disgust for the patient... To create new responsibility, responsibility of doctor, for all of cases, where higher interest to life, ascending life, requires merciless suppression and removal of degenerate life — for example, for a right on conception, for a right to be born, for a right to live... Not in our hands to prevent our birth: but this error — because sometimes it is an error — we can correct. If destroy itself, do deserving the greatest respect business: almost deserve this to live.... Society, that I talk — life has a large benefit from it, what from some «life» in renunciation, pale sickness and other virtue...». Basic options of naturalistic-pragmatic ethics to a full degree are principles of ground of moral-ethic «legitimacy» of euthanasia, to financial and demographic viability of «prognosing» control of medical genetics after the «health of population», to legitimacy of elimination of life at embryonic level, miscalculation of «cost» of transplantological extension and completion of life on the criteria of «death of brain» etc. the first block of «new ethics standards is formed In the second half of XX age». To them behave: «morality of murder» — these concepts work at the level of headings of reasons, fixed that scientific conferences; «deserve to live, deserve to die» is a slogan of supporters of euthanasia; «death of brain» is not only medical but also ethics approval on research and use of human biotmaterial (the European culture is acquainted with situations, when anatomy-phisiological concepts were simultaneously filled with ethics sense, for example, «cardiac» man in a christian moral); «giving of organs» — «cultural space» of the former USSR maximally geared-up to acceptance of this standard due to architype of Gorkovsky «hero-Danko», rescuing people plucked-up, fighting, «hot» by a heart; «technology of procreation» — one of the names of new type of business, already today prosperous due to «pregnant» profits; «rational planning of family», «genetic policy», «genetic treading» on the inherited diseases with the purpose of «correction of natural selection», prenatal diagnostics as a mean is «artificial ãî selection» et cetera etc. These «ethics standards» are the structural elements of liberal form of bioethics. Naturalistic-pragmatic ethics and liberal ideology is united by general initial foundation, which prevailing of absolute laws and born necessities of man is.