This conference comes together at a critical time for law, ethics, and medicine. The issues which come under attention are of the greatest variety, complexity, sensitivity, and urgency.

The topics span the whole of human life. They begin at a point before human life has commenced. The revolutionary developments of biology as they affect conception and the use and limits of reproductive and genetic techniques arrest our thoughts in section VI of this special issue of Law, Medicine & Health Care. The rationing of health care as it is made available to patients and the community is the focus of attention in section III. The subject of medical malpractice and the litigation which attends it where the patient or the family claim that things have gone wrong are considered in section II.

The new challenge of AIDS is discussed with its many faceted problems: medical, legal, and ethical. It is difficult now to remember the world before AIDS.

Major changes are occurring in health law and ethics. Not only are new questions being asked, but new answers are being given, sometimes by new participants. The ferment of the field was very evident during London ‘89, the Second International Conference on Health Law and Ethics, as I hope readers can discern from the essays in this journal. Traditional issues remain, but new themes—such as the place of community welfare alongside values like promoting patient autonomy and serving justice—have emerged with great urgency because of the AIDS epidemic and the constraints on health care spending. Economists and health care planners are looking beyond technical responses and participating more actively in bioethical debates, even as the field seems to be of greater interest to Europeans, Japanese, and people from developing countries, who include a larger number of government officials than is true in most settings in the United States.

Major changes are occurring in health law and ethics. Not only are new questions being asked, but new answers are being given, sometimes by new participants. The ferment of the field was very evident during London ‘89, the Second International Conference on Health Law and Ethics, as I hope readers can discern from the essays in this journal. Traditional issues remain, but new themes—such as the place of community welfare alongside values like promoting patient autonomy and serving justice—have emerged with great urgency because of the AIDS epidemic and the constraints on health care spending. Economists and health care planners are looking beyond technical responses and participating more actively in bioethical debates, even as the field seems to be of greater interest to Europeans, Japanese, and people from developing countries, who include a larger number of government officials than is true in most settings in the United States.

Three periods can be distinguished in the brief history of global AIDS: silence, discovery and mobilization. The first period, starting in the mid-l970s, was the time of the “silent pandemic,” during which HIV spread — unnoticed—to at least five continents. During this period, when the virus was unrecognized, HIV could have — but did not — spread even more widely.

The description of AIDS in 1981 ended the silence and initiated the second period in the history of global AIDS — a period of discovery which culminated symbolically at the first International Conference on AIDS in June 1985 (Atlanta, USA). During this period, the modes of transmission were defined, the virus was discovered, and the capacity to detect anti-viral antibodies led to the discovery of large numbers of infected persons and to awareness of the long latency between infection and manifest disease.

The subject of screening stands at the intersection of medicine and public health and the law. Medicine is concerned about the care of the individual patient; public health focuses on maintaining and improving the health of entire populations. The law is concerned with the balance of rights and responsibilities, protecting society from errant individuals and protecting the individual from undue constraints of society.

In looking specifically at the questions of screening or testing for the Human Immunodeficiency Virus (HIV) it is useful to consider the meaning of the words “tests” and “screening” because many different terms are applied to these concepts — diagnostic testing, case finding, screening, surveillance, and so on. In all cases, medical tests have a common purpose: to provide information that sheds light on the probability that the disease of interest actually is present in the patient being tested.

Acquired immunodeficiency syndrome continues to expand exponentially, although the rate of growth in some sectors of the population has been slowing. Unfortunately, these clinically manifest cases constitute only a tiny fraction of the population infected with the human immunodeficiency virus. Epidemiologic data provide only crude estimates of the prevalence of asymptomatic viral infection, although more specific information is available for certain groups, most often defined by demographic, behavioral and medical information. Those data suggest that the prevalence of virus varies some 5000-fold from as low as 0.01 percent up to 50 percent.

The extraordinary and relatively unmodifiable consequences of HIV infection provoke increasing concern among health care workers about the possibility of nosocomial infection. For nosocomial transmission to occur: 1) the patient must be infected; 2) parenteral exposure to blood or certain other body fluids must occur; and 3) the virus must be transferred (with the latter likelihood being proportional to the quantity of exposure).

The first AIDS-related legislation was enacted in 1983. By this time, policy-makers as well as legislators in several countries had set in motion the process of formulating legislative measures to deal with a new and critical problem about which very little was known. This process gathered momentum over the years, partly as a response to the recognition that the problem of discrimination against AIDS patients and persons with HIV infection, which first began with homosexuals and persons of Haitian and African origin, will assume more critical dimensions with devastating social, economic, political and cultural implications and reactions. It is these implications and reactions which have come to be described as the “Third AIDS Pandemic:”

As the sense of crisis in medical malpractice reemerged in the United States in the early 1980s, other countries previously thought immune to liability problems were experiencing similar difficulties. In fact, the frequency and severity of malpractice claims and the cost of malpractice insurance have risen as dramatically in Canada and the U.K. as in the United States, despite legal systems in the U.K. and Canada that are generally less favorable to potential plaintiffs. The absolute level of claims and insurance costs are still lower in the U.K. and Canada than in the U.S., but the gap is narrowing. This paper reviews the evidence on recent trends in claims, awards and insurance premiums in these three countries and comments on the lessons that can be learned from this cross-national comparison.

The purpose of this paper is to review the nature and extent of pertussis vaccine litigation in Great Britain, Canada and the United States. It is not intended to deal in detail with the medical or scientific controversy that surrounds this vaccine except to the extent necessary to explain the litigation.

In order to understand what has been called by some a growth industry for lawyers, one must have a basic understanding of the nature of the disease and the nature of the vaccine and know something about the neurological development of the young child.

The disease whooping-cough (pertussis) is well known as an acute and distressing infection of the respiratory tract. Although less frequent in recent years, it has been a disease relatively common in infant children.

The disease is caused by a bacterium known as Bordetella pertussis, which produces catarrhal coughing that results in repetitive, explosive or paroxysmal coughing.

Until the fourth decade of this century, British and American patients who could afford physician services paid for them out of their own pockets; those who could not relied on charity care or simply went without. Doctors functioned as independent contractor private practitioners in both Great Britain and the United States, allocating medical services in response to paying-patient demand — and their own consciences.

Beginning in the 1930s, health care financing on both sides of the Atlantic was restructured in dramatically different directions, and physicians’ allocational roles in their respective countries began diverging. Under the National Health Service (NHS), British general practitioners became essentially gatekeepers to health services, funneling patients to appropriate hospital and specialist care. As time went by they came more to resemble lockkeepers, regulating the queue for secondary and tertiary treatment resulting from governmental limits on health care spending — and from the limitations and inefficiencies of a system of rationing by waiting. In the U.S., on the other hand, efficiency was not at first a concern.

The effort to control inflation of the cost of health care in the United States in recent years has focused on a strategy of introducing competition by encouraging prospective payment systems such as DRGs and HMOs. Changes associated with these new payment systems have engendered a debate that has been conducted partly in terms of medical ethics. Because they tend in various ways to provide physicians with incentives to reduce medical costs, prospective payment systems have been alleged to create ethical conflicts for physicians. The obligation to practice cost-effective medicine is said to conflict with the obligation of physicians under the traditional professional view of medical ethics to provide the best care to patients without regard to cost or other matters. At bottom is the concern that the net effect of these changes will be to force physicians to ration medical services. Not only will patients suffer thereby, but professional authority will be weakened as efficiency protocols and various bonuses or inducements alter the norms of clinical decision-making.

Public policy with regard to decisions to forgo life-sustaining medical care has dramatically changed over 15 years. Courts, legislatures, and professional bodies recognize a patient's right to refuse treatment despite civic or medical values that favor prolonging life. The United States Supreme Court has taken up this issue on an appeal of Missouri's Supreme Court decision ordering tube feeding for comatose Nancy Cruzan over her family's objections. The right to refuse life-sustaining treatment exemplifies a changing accommodation between controversial personal choices and the values our society holds collectively. As with other civil rights issues to come before the Court, the courts embody the very cultural canon they critique and redefine.

While the relevance of the American tenet of individualism to the “right to die” (properiy, the “righi to refuse life-sustaining treatment”) is well recognized, the role of our culture's view of gender in these decisions is not appreciated.

Proposals to make neocortical death, sometimes called cerebral death, a medical and legal indication of human death are becoming more common. Increased sensitivity to the futility and costs of providing life support for patients long after they could be considered dead guarantees that interest in the proposals will continue for some time. Neocortical death would be an acceptable indication of human death if 1) it is consistent with our concepts of human death, 2) it can be diagnosed with certainty and 3) it is sufficiently understood by the general public to be accepted as public policy.

In this paper the phrase “neocortical death” will refer to permanent loss of consciousness due to the irreversible cessation of whatever chemical and biological functions of the brain are needed to support consciousness. By consciousness is meant “the state of awareness of the self and the environment.”

As a nurse and policy analyst, my interest in the subject of active euthanasia lies in the practical consequences of formal policy (for example, ethical guidelines), as well as the consequences of having no formal policy, for therapeutic practice.

The basic assumption underpinning this paper is that policy decisions in the area of euthanasia cannot be simply ‘read off’ from any theoretical body of knowledge, but rather such decisions are always grounded in particular situations and social relationships. In this, I concur with Reedy, Minogue, and Sterk, who argue that:

In recent years, the competency of patients to refuse life-sustaining treatment has been widely discussed. Generally, competence has been recognized to be a legal concept, holding that the patient is presumed competent unless a court declares the person incompetent and designates a guardian. It has been noted, however, that clinical medical practice often diverges markedly from this standard. Some authors have suggested that in many cases the implicit medical presumption may be that many persons, particularly the aged, are presumed incompetent to refuse treatment until they demonstrate to their physician's satisfaction that they are competent. This gap between legal theory and medical practice presents numerous difficulties to both legal and medical professionals seeking to accommodate the competing values of patient self-determination and best interests.

This paper will present and discuss a case exemplifying a particular problem that can arise in the competency evaluation process.

Both courts and legislatures have gone a long way toward recognizing individual autonomy to shape the extent of medical intervention in the face of a naturally occurring dying process. This autonomy extends beyond the patient's period of capacity to make decisions on his or her own behalf. That is, a person, while still competent, can express treatment preferences, and those preferences will generally be honored after competence to make medical determinations has been lost. This is the message flowing from judicial emphasis on “substituted judgment” as an important guide in the medical handling of incompetent patients, and from the multitude of “natural death” or “living will” statutes adopted over the last 12 years.

These statutes prescribe a format for a person to issue instructions about medical treatment or non-treatment to be followed if the person becomes incompetent. Such prior instructions designed to guide future medical decisions can be somewhat problematical. If the instructions are not issued proximately to the moment of their utilization, there may be concern that the issuer's preferences have changed over time.

For more than 20 years, the Soviet Union has been charged with confining political and religious dissidents in psychiatric hospitals for other than medical reasons. The repressive use of psychiatric hospitalization has been primarily associated with the maximum security “special hospitals,” operated by the Ministry of Internal Affairs, to which dissidents have been committed after being found mentally nonresponsible for political crimes. In 1977, the World Psychiatric Association (WPA) condemned the Soviet Union for such abuses, and six years later the Soviet All-Union Society of Neuropathologists and Psychiatrists resigned from the WPA rather than face almost certain expulsion. Soviet psychiatric officials repeatedly denied these charges of political abuse and refused to permit international bodies or psychiatrists from other countries to see the patients and psychiatric hospitals in question.

In the spring of 1989, however, the Soviet government allowed an official delegation of psychiatrists and forensic experts from the United States to interview patients, selected by the delegation, in whose cases hospitalization was believed to have been politically motivated.

For centuries philosophers and writers have reflected on the idea that all human beings, by virtue of being human, are entitled to certain fundamental rights and freedoms. Among these are political and civil rights, as well as economic, social, and cultural rights. Historically, however, how an individual was treated within the boundaries of his own country was not considered the business of any other country. After 1945, as a result of the Holocaust and the atrocities committed by the Nazis against humanity, human rights questions were accepted as international concerns. The nations of the world then agreed that the promotion of human rights and fundamental freedoms were to be one of the principal purposes of the newly-formed United Nations. The Universal Declaration of Human Rights and the Genocide Convention were adopted in 1948. The Universal Declaration of Human Rights sets out common standards that all peoples and all nations should strive for.