HealthLawProf Blog

Who is eligible for voluntary assisted dying? Nine medical conditions assessed against five legal frameworks

Ben White (Queensland University of Technology), Lindy Willmott (Queensland University of Technology), Katrine Del Villar (Queensland University of Technology), Jayne Hewitt (Griffith University), Eliana Close (Queensland University of Technology), Laura Ley Greaves (Queensland University of Technology), James Cameron (Victorian Government - Department of Health and Human Services), Rebecca Meehan (Independent), Jocelyn Downie (Schulich School of Law & Faculty of Medicine), Who is eligible for voluntary assisted dying? Nine medical conditions assessed against five legal frameworks, 45 U. New South Wales L. J. 1 (2022):

Eligibility criteria in voluntary assisted dying legislation determine access to assistance to die. This article undertakes the practical exercise of analysing whether each of the following nine medical conditions can provide an individual with access to voluntary assisted dying: cancer, motor neurone disease, chronic obstructive pulmonary disease, chronic kidney disease, Alzheimer’s disease, anorexia, frailty, spinal cord injury and Huntington’s disease. This analysis occurs across five legal frameworks: Victoria, Western Australia, a model Bill in Australia, Oregon and Canada. The article argues that it is critical to evaluate voluntary assisted dying legislation in relation to key medical conditions to determine the law’s boundaries and operation. A key finding is that some frameworks tended to grant the same access to voluntary assisted dying, despite having different eligibility criteria. The article concludes with broader regulatory insights for designing voluntary assisted dying frameworks both for jurisdictions considering reform and those reviewing existing legislation.

On the Compatibility of Pandemic Data-Driven Measures with Data Protection: A Review of Ireland's ‘Under the Radar’ COVID-19 Measures

Maria Grazia Porcedda (Trinity College Dublin), On the Compatibility of Pandemic Data-Driven Measures with Data Protection: A Review of Ireland's ‘Under the Radar’ COVID-19 Measures, 73 N. Ireland Legal Q. (2022):

This article reviews the compatibility of ‘under-the-radar’ data-driven measures adopted in Ireland to contain the COVID-19 pandemic with data protection law. Since data protection law implements and gives substance to the right to the protection of personal data enshrined in article 8 of the Charter of Fundamental Rights of the European Union, the article reviews the compatibility of data-driven measures with the applicable law in light of the Charter. The measures reviewed – thermal scanner guns, health self-check forms, Statutory Instruments for contact logging and the Vaccine Information System – appear well-meaning but partly incompatible with the right to data protection. The analysis points to the difficulty of reconciling public health and data protection without a systematic data-processing strategy and concludes with recommendations for right-proofing data-driven measures in the guise of a blueprint strategy for processing personal data for present and future pandemic purposes.

The Legal and Scientific Infirmities of Legislating Nicotine Reduction

Barbara Pfeffer Billauer (Institute of World Politics), The Legal and Scientific Infirmities of Legislating Nicotine Reduction, Genetic Literacy Project (2022):

Biden’s proposal to reduce nicotine in cigarettes to “minimally or non-addictive” levels is devoid of both a scientific and legal basis. This article explores the infirmities in the supposed science raised to support the proposal, critiques the deficiencies in the mathematical modeling techniques used, and demonstrates that the threshold for nicotine addiction is currently unknown and that nicotine dose responses are variable in the population. Additionally, and has a strong genetic component that should be evaluated before the policy is formulated. Without understanding the science involved, any legal threshold would be speculative and hence infirm.

Pandemic Restrictions and Their Legal Assessment

Tural Kuli-Zade (National Research Institute), Alexander Rozanov (Law Institute of the Russian University of Transport), Pandemic Restrictions and Their Legal Assessment, SSRN (2022):

Making a general conclusion, when answering the question whether the restrictions on the constitutional rights and freedoms of man and citizen during the pandemic are a violation; our opinion is divided. On the one hand, we argue that restrictions on the constitutional rights and freedoms of man and citizen during the pandemic are a violation, since in many moments they infringe on citizens and deprive them of their legitimate opportunities; on the other hand, we say that restrictions on constitutional human and civil rights and freedoms during a pandemic are not a violation, as they are a necessary measure to protect the health of citizens and the security of the state. Therefore, we can say that it is impossible to answer this question unequivocally, since it does not contain a clear answer that would be correct.

Australia's Framework for Access to Essential Medicines: Patent Law, Public Health, and Pandemics

Matthew Rimmer (Queensland University of Technology), Australia's Framework for Access to Essential Medicines: Patent Law, Public Health, and Pandemics in Australian Public Health Law: Contemporary Issues and Challenges (Belinda Bennett & Ian Freckelton, eds., Forthcoming):

Investigating Australia's framework for access to essential medicines, this chapter explores the intersection between patent law, public health, and pandemics.

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Unequal World in Healthcare, Digitalization and Corruption

Julia M. Puaschunder (Columbia University), Unequal World in Healthcare, Digitalization and Corruption, Proceedings of the 3rd Unequal World Conference of the United Nations, United Nations New York (2021):

The currently ongoing COVID-19 crisis challenges healthcare around the world. The call for global solutions in international healthcare pandemic outbreak monitoring and crisis risk management has reached unprecedented momentum. Digitalization, Artificial Intelligence (AI) and big data-derived inferences are supporting human decision making as never before in the history of medicine. In today’s healthcare sector and medical profession, AI, algorithms, robotics and big data are used as essential healthcare enhancements. These new technologies allow monitoring of large-scale medical trends and measuring individual risks based on big data-driven estimations. Examining medical responses to COVID-19 on a global scale makes international differences in the approaches to combat global pandemics with technological solutions apparent. Empirical research finds the world being unequal in regards to AI-driven global healthcare solutions. The parts of the world that feature internet connectivity and high GDP are likely to lead on AI-driven big data insights for pandemic prevention. When comparing countries worldwide, AI advancement is found to be positively correlated with anti-corruption. AI thus springs from non-corrupt territories of the world. Countries in the world that have vital AI growth in a non-corrupt environment are predestined to lead the world in breakthrough innovations in the healthcare sector. These non-corrupt AI centers hold comparative advantages to lead on global artificial healthcare solutions against COVID-19 and serve as pandemic crisis and risk management innovators of the future. Anti-corruption is also positively related with better general healthcare on a global scale. Countries that combine internet connectivity, anti-corruption as well as healthcare access and quality are considered to be ultimate innovative global pandemic alleviation leaders, in which access to innovation funding can drive leadership on future pandemic prevention. The advantages of access to affordable quality medical care around the world but also potential shortfalls and ethical boundaries in the novel use of monitoring Apps, big data inferences and telemedicine to prevent pandemics should become scrutinized in future global healthcare governance.

A New Method for Calculating Sugars Content and Determining Appropriate Sugars Levels in Foods

Abed Forouzesh (University of Tehran), Fatemeh Forouzesh (Islamic Azad University), Sadegh Samadi Foroushani (University of Tehran), Abolfazl Forouzesh (Islamic Azad University), A New Method for Calculating Sugars Content and Determining Appropriate Sugars Levels in Foods, SSRN (2022):

Calculating the sugars content per 100 g or 100 mL or the reference amount customarily consumed (RACC) shows the sugars content of some foods inappropriately. So, making some food choices based on them to limit sugars intake may increase the risks of some chronic diseases. Calculating the sugars content and determining appropriate sugars levels (to limit sugars intake) based on the proposed method were performed in 6,810 food items. Making food choices based on the proposed method to limit sugars intake did not exceed sugars needs. Also, foods that did not exceed sugars needs were appropriate food choices based on the proposed method to limit sugars intake.

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The Right to Health: A Case for Its Full Realization and Enforcement under the Nigerian Legal Framework

Queen Ukpo (Independent), The Right to Health: A Case for Its Full Realization and Enforcement under the Nigerian Legal Framework, SSRN (2022):

Arguments have been proffered to the effect that the right to health is not legally protected under the current legal regime in Nigeria. Contesting these arguments might seem herculean and it does not help that the right to health is not particularly mentioned as a fundamental right in Chapter 4 of the Nigerian Constitution. Notably, health is only mentioned in Chapter 2 of the Constitution , a chapter of the Constitution whose provisions are regrettably unenforceable.

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A New Method for Calculating Sodium Content and Determining Appropriate Sodium Levels in Foods

Abed Forouzesh (University of Tehran), Fatemeh Forouzesh (Islamic Azad University), Sadegh Samadi Foroushani (University of Tehran), Abolfazl Forouzesh (Islamic Azad University), A New Method for Calculating Sodium Content and Determining Appropriate Sodium Levels in Foods, SSRN (2022):

Calculating the sodium content per 100 g or 100 mL, 50 g, or the reference amount customarily consumed (RACC) shows the sodium content of some foods inappropriately. So, making some food choices based on them to limit sodium intake may increase the risks of some chronic diseases. Calculating the sodium content and determining appropriate sodium levels (to limit sodium intake) based on U.S. Food and Drug Administration (FDA), Codex Alimentarius Commission (CAC), and the proposed method were performed in 8,515 food items. Making some food choices based on the FDA per serving (the serving is derived from the RACC, 100 g, or 50 g) or CAC per 100 g to limit sodium intake exceeded sodium needs, which could lead to hypertension. Some foods that did not exceed sodium needs were not appropriate food choices based on the CAC per 100 g or FDA per serving to limit sodium intake. Some foods were free of, but not very low or low in, sodium, based on the FDA per serving. Making food choices based on the proposed method to limit sodium intake did not exceed sodium needs. Also, foods that did not exceed sodium needs were appropriate food choices based on the proposed method to limit sodium intake.

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A New Method for Calculating Riboflavin Content and Determining Appropriate Riboflavin Levels in Foods

Abed Forouzesh (University of Tehran), Fatemeh Forouzesh (Islamic Azad University), Sadegh Samadi Foroushani (University of Tehran), Abolfazl Forouzesh (Islamic Azad University), A New Method for Calculating Riboflavin Content and Determining Appropriate Riboflavin Levels in Foods, SSRN (2022):

Calculating the riboflavin content per 100 kcal, 100 g or 100 mL, or the reference amount customarily consumed (RACC) shows the riboflavin content of some foods inappropriately. So, making some food choices based on them to achieve adequate riboflavin intake may increase the risks of some chronic diseases. Calculating the riboflavin content and determining appropriate riboflavin levels (to achieve adequate riboflavin intake) based on U.S. Food and Drug Administration (FDA), Codex Alimentarius Commission (CAC), and the proposed method were performed in 8,008 food items. Making some food choices based on the FDA and CAC per serving (the serving is derived from the RACC) or CAC per 100 g or 100 mL to achieve adequate riboflavin intake exceeded energy needs, which could lead to overweight or obesity. Making some food choices based on the CAC per 100 kcal or CAC per 100 g or 100 mL to achieve adequate riboflavin intake did not meet riboflavin requirements, which could lead to riboflavin deficiency. Some foods that met riboflavin requirements were not appropriate food choices based on the CAC per 100 g or 100 mL or CAC per serving to achieve adequate riboflavin intake. On the basis of the proposed method, calculating the riboflavin content and determining appropriate riboflavin levels in foods are performed by considering RACCs and the energy content of foods. Thus, making food choices based on the proposed method met riboflavin requirements and did not exceed energy needs.

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The Tobacco Endgame Avengers: Strategies for a Smokefree Future in Australia

Matthew Rimmer (Queensland University of Technology ), The Tobacco Endgame Avengers: Strategies for a Smokefree Future in Australia in Australian Pub. Health L.: Contemporary Issues and Challenges (Belinda Bennett & Ian Freckelton, eds., Forthcoming).

This chapter explores contemporary issues and challenges in respect of tobacco control in Australia. It considers the role of Australia as a pathfinder in respect of developing and defending pioneering public health laws and regulations, which have then been adopted and adapted elsewhere around the world. This chapter examines the successful introduction and defence of plain packaging of tobacco products in the High Court of Australia. It highlights the ramifications of this decision for other fields of public health. This chapter considers the need to update tobacco control regulation to deal with social media and digital communication. It explores the challenges to tobacco advertising regulations posed by tobacco companies and e-cigarette companies in respect of the use of social media and Internet influencers. This chapter examines and evaluates the prospect of tobacco-endgame strategies. In particular, it looks at the T21 proposal in Tasmania, and spatial limitations and restrictions on smoking in Queensland. This chapter explores civil litigation against tobacco companies in Australia, and highlights the vulnerability of e-cigarette companies to legal action. It also investigates the potential of criminal liability for tobacco companies in Australia. This chapter considers the campaign for tobacco divestment, and the persistent problem of tobacco interference in policy-making in Australia. It concludes with the recommendation that Australia should pursue a tobacco endgame policy – much like its neighbour, New Zealand.

Regulating Gambling-Like Video Game Loot Boxes: A Public Health Framework Comparing Industry Self-Regulation, Existing National Legal Approaches, and Other Potential Approaches

Leon Y. Xiao (IT University of Copenhagen), Laura L. Henderson (The Honourable Society of Lincoln’s Inn), Rune K.L. Nielsen (IT University of Copenhagen), Philip Newall (Central Queensland University), Regulating Gambling-Like Video Game Loot Boxes: A Public Health Framework Comparing Industry Self-Regulation, Existing National Legal Approaches, and Other Potential Approaches, Curr Addict Rep (2022):

Purpose of Review: Loot boxes are gambling-like monetisation mechanics in video games that are purchased for opportunities to obtain randomised in-game rewards. Gambling regulation is increasingly being informed by insights from public health. Despite conceptual similarities between loot boxes and gambling, there is much less international consensus on loot box regulation. Various approaches to regulating loot boxes are reviewed via a public health framework that highlights various trade-offs between individual liberties and harm prevention.

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Meeting the Health Challenges of Displaced Populations from Ukraine

Yulia Ioffe (University of Oxford), Ibrahim Abubakar (University College London), Rita Issa (London School of Hygiene & Tropical Medicine), Paul Spiegel (Johns Hopkins University), Bernadete Nirmal Kumar (CIRGH), Meeting the Health Challenges of Displaced Populations from Ukraine, SSRN (2022):

The worsening humanitarian catastrophe and conflict in Ukraine has led to the largest refugee crisis in Europe since World War 2. Millions of people are expected to flee Ukraine, with more than a million individuals having fled the country in the first week of the conflict alone.The consequences of war, trauma, and devastation must be tackled swiftly. The resultant mid-term and long-term needs must propel all sectors, including health, into rapid action. We join others in calling for the immediate cessation of violence by the Russian Government in Ukraine and urge all European countries to adopt evidence-based approaches in supporting and responding to the health needs of displaced populations from Ukraine.

Heritable human genome editing: the bioethical battle for the basis and future of human rights

Niall Coghlan (European University Institute), Heritable human genome editing: the bioethical battle for the basis and future of human rights, Implications philosophiques (2022):

Is it permissible to interfere with the genome of future humans? Recent advances – including the alleged birth of the first genome-edited babies in 2018 – have brought fresh vigour to this long-standing human rights debate. This article first summarises the existing international human rights law (IHRL) prohibitions on such interference, the ‘conservative’ arguments that justify it, and the ‘liberal’ critique of the same. It then develops two arguments. First, this debate is underpinned by a clash of visions as to the orientation, basis and limits of human rights themselves. Each side draws on a strand of existing IHRL practice, but each requires radical transformation of that practice. Given this, the prohibitions are best understood not as individual or collective rights, but rather as ‘self-defence’ provisions analogous to abuse or derogation clauses. This understanding may help clarify and unblock the debate. Second, human rights have serious limitations as the terrain for this debate, above all in obscuring the true existential stakes behind the clash. The article concludes with broader reflections on human rights’ adequacy to address questions concerning the long-term future of humanity.

Experiences of Late First Trimester Abortion in Irish Hospitals: Suggestions for Change

Aideen O'Shaughnessy (University of Cambridge), Rachel Roth (Abortion Rights Campaign), Anna Carnegie (London School of Hygiene & Tropical Medicine), Lorraine Grimes (National University of Ireland), Experiences of Late First Trimester Abortion in Irish Hospitals: Suggestions for Change, SSRN (2022):

In January 2019, the Republic of Ireland implemented a new liberalised abortion law, paving the way for the systematic provision of legal abortion care for the first time in the country’s history. Between September 2020 and March 2021, the Abortion Rights Campaign (ARC) conducted an online survey to learn about Irish residents’ experiences of this new abortion landscape. Using a convenience sampling approach, this survey gathered quantitative and qualitative data from individuals who had accessed or attempted to access an abortion in Ireland since January 1st, 2019. A key theme that emerged from the survey data was problems with abortion care between 10-12 weeks since the last menstrual period (LMP). Contrary to international best practice, abortions between 10- and 12-weeks LMP are required by Irish government policy and clinical guidelines to be carried out in hospitals. Our analysis of the survey data found overwhelmingly negative experiences of late first trimester abortion care in Irish hospitals and reports specifically on problems with lack of respect, knowledge and sensitivity from healthcare practitioners, inadequate hospital infrastructure and facilities, delays in accessing care, and lack of choice regarding abortion methods. Abortion care between 10-12 weeks LMP constitutes a critical area of research, policy, and practice, especially given that the provision of care beyond 12 weeks 0 days constitutes a criminal offence in Ireland outside of the limited permissible grounds indicated in the Health Act 2018. This research provides strong evidence for Irish policymakers, regulators, and professional medical societies to update clinical guidance, invest in medical training, and revise policy to allow later provision of abortion care in primary care settings.

A New Method for Calculating Selenium Content and Determining Appropriate Selenium Levels in Foods

Abed Forouzesh (University of Tehran), Fatemeh Forouzesh (Islamic Azad University), Sadegh Samadi Foroushani (University of Tehran), Abolfazl Forouzesh (Islamic Azad University), A New Method for Calculating Selenium Content and Determining Appropriate Selenium Levels in Foods, SSRN (2022):

Calculating the selenium content per 100 kcal, 100 g or 100 mL, or the reference amount customarily consumed (RACC) shows the selenium content of some foods inappropriately. So, making some food choices based on them to achieve adequate selenium intake may increase the risks of some chronic diseases. Calculating the selenium content and determining appropriate selenium levels (to achieve adequate selenium intake) based on U.S. Food and Drug Administration (FDA), Codex Alimentarius Commission (CAC), and the proposed method were performed in 6,961 food items. Making some food choices based on the FDA and CAC per serving (the serving is derived from the RACC) or CAC per 100 g or 100 mL to achieve adequate selenium intake exceeded energy needs, which could lead to overweight or obesity. Making some food choices based on the CAC per 100 kcal or CAC per 100 g or 100 mL to achieve adequate selenium intake did not meet selenium requirements, which could lead to selenium deficiency. Some foods that met selenium requirements were not appropriate food choices based on the CAC per 100 g or 100 mL or CAC per serving to achieve adequate selenium intake. On the basis of the proposed method, calculating the selenium content and determining appropriate selenium levels in foods are performed by considering RACCs and the energy content of foods. Thus, making food choices based on the proposed method met selenium requirements and did not exceed energy needs.

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The Implications of Food-Parcel Corruption for the Right to Food during the COVID-19 Pandemic in South Africa

Paul Mudau (affiliation not provided to SSRN), The Implications of Food-Parcel Corruption for the Right to Food during the COVID-19 Pandemic in South Africa, SSRN (2022):

This article sets out to ascertain the nature of the structural implications of food-parcel corruption for the right to sufficient food during the COVID-19 pandemic in South Africa. A subsidiary aim is to offer useful solutions aimed at remedying the profound impacts of these structural implications. A fundamental pillar of the solutions entails a human-rights-dimensioned response, as well as the steadfast strengthening of anti-corruption mechanisms in food relief initiatives during emergencies caused by natural disasters.

The European Union Proposal for Regulating Artificial Intelligence and its Application in Medical Robotics Surgery

Ana Rita Maia (University of Minho), The European Union Proposal for Regulating Artificial Intelligence and its Application in Medical Robotics Surgery, SSRN (2022):

Time brings technological developments which serve multiple sciences conveniently with the purpose of improving and achieving better results. This holds true for the healthcare industry currently experiencing technological paraphernalia using artificial intelligence at its heart. This reality often leads the usual binary physician-patient relationship into a physician-robot-patient relationship, a scenario that requires a review of legal regulation while considering physicians’ accountabilities.

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Repeat Prescription? The NHS and Four Decades of Privatisation Paranoia

Kristian Niemietz (Institute of Economic Affairs), Repeat Prescription? The NHS and Four Decades of Privatisation Paranoia, SSRN (2022):

In 1980, an article in The Times predicted that over the next five years, the National Health Service (NHS) would be privatised step by step, and the UK would drift towards an American-type healthcare system. This obviously did not happen. But that has not stopped people from repeatedly making the same prediction ever since. Conspiracy theories about ‘secret plans’ to dismantle and privatise the NHS are a fixed feature of British politics. The recurring moral panics around the NHS are not just a harmless eccentricity. They have a huge opportunity cost: the crowding out of any sensible discussion of health reform.

A Submission to the Senate Select Committee on COVID-19 on the TRIPS Waiver: Intellectual Property, Access to Essential Medicines, and the Coronavirus COVID-19

Matthew Rimmer (Queensland University of Technology), A Submission to the Senate Select Committee on COVID-19 on the TRIPS Waiver: Intellectual Property, Access to Essential Medicines, and the Coronavirus COVID-19, SSRN (2022):

The Senate Select Committee on COVID-19 has broad terms of reference to investigate ‘the Australian Government's response to the COVID-19 pandemic; and any related matters.’ This submission to the Senate Select Committee on COVID-19 focuses upon intellectual property, access to essential medicines, and the coronavirus. It considers the Australian Government’s response to legal issues in respect of the COVID-19 pandemic relating to intellectual property, public health, and international trade. This submission considers the challenges and obstacles presented by vaccine nationalism and commercial profiteering during the COVID-19 crisis. It explores the call by civil society, developing countries, and international institutions for a ’People’s Vaccine’. In a wide-ranging survey, the submission examines a number of mechanisms designed to improve access to essential medicines. This report explores the operation of institutions, such as ACT-Accelerator, the Medicines Patent Pool, and C-TAP, which are designed to facilitate the sharing of vaccines, treatments, diagnostics, and health-equipment. Drawing upon past precedents in the biomedical sphere, this study considers the role of patent flexibilities – such as compulsory licensing, crown use, and government acquisition. It also examines the scope for public sector licensing – particularly where there has been public sector funding of COVID-19 related technologies. This submission also investigates the Open COVID Pledge, the role of open licensing, and the development of open innovation models. This report finally looks at Australia’s equivocal position in the debate over the TRIPS Waiver. This submission contends that an endorsement of the TRIPS Waiver by the Australian Government will help boost domestic biomanufacturing of vaccines, treatments, diagnostics, and health-equipment, as well as assist our near neighbours in the Asia-Pacific. Moreover, Australia will show international leadership through its support of a TRIPS Waiver, and hasten the resolution of the current global public health coronavirus crisis.