Many countries, including Australia, have established a national scheme that supports the recognition of a single ethical review for multi-centre research conducted in publicly funded health services. However, local site-specific governance review processes remain decentralised and highly variable. This short report describes the ethics and governance processes required for a negligible risk national survey of physiotherapy-led airway clearance services in Australia. We detail inconsistencies in research governance document preparation and submission (platforms, processes, forms and signatories) and report the (...) time cost and likely impact of these inconsistencies on health services research outcomes. Processes and strategies that facilitated success in this project are identified and summarised as helpful hints to other researchers looking to embark on negligible risk research in public health facilities. (shrink)

There are increasing concerns that research regulatory requirements exceed those required to manage risks, particularly for low- and negligible-risk research projects. In particular, inconsistent documentation requirements across research sites can delay the conduct of multi-site projects. For a one-year, negligible-risk project examining biobank operations conducted at three separate Australian institutions, we found that the researcher time required to meet regulatory requirements was eight times greater than that required for the approved research activity. In total, 76 business (...) days were required to obtain the necessary approvals, and site-specific processes required twice as long as primary Human Research Ethics Committee and Research Governance Office processes. We describe the impact of this administrative load on the conduct of a one-year, externally-... (shrink)

David McCarthy has recently suggested that our compensation and liability practices may be interpreted as reflecting a fundamental norm to hold people liable for imposing risk of harm on others. Independently, closely related ideas have been criticised by Stephen R. Perry and Arthur Ripstein as incompatible with central features of negligence law. We aim to show that these objections are unsuccessful against McCarthy’s Risk–liability theory, and that such an approach is a promising means both for understanding the moral (...) basis of liability for negligence and for reasoning about possible reforms of the institution of negligence law. (shrink)

Commentators seemingly agree about what negligence is—and how it is contrasted from recklessness. They also appear to concur about whether particular examples (both real and hypothetical) portray negligence. I am less confident about each of these matters. I explore the distinction between recklessness and negligence by examining a type of case that has generated a good deal of critical discussion: those in which a defendant forgets that he has created a substantial and unjustifiable risk of harm. Even in this (...) limited kind of example, no single perspective on blame and liability proves to be defensible. Nonetheless, a discussion of this type of case is helpful because it enables us to appreciate the difficulties in understanding the nature of negligence and the ensuing uncertainty about whether penal liability for negligence is ever warranted. (shrink)

Negligence is both an important concept and an ambiguous one. Here I concentrate upon the sense of creating an unjustifiable, low-probability risk of future harm. This essay attempts to dispel theprevalent view that only a maximizing, utilitarian approach can render intelligible certain features of negligence analysis—its focus on the marginal advantages and disadvantages of the actor's taking a specific precaution, its consideration and balancing of the short-term effects of different actions, and its sensitivity to a multiplicity of factors. Perhaps (...) certain absolutist deontological perspectives are inconsistent with these features; but other deontological perspectives can easily accommodate them. Careful examination of the concept of negligence helps resolve an important debate about the nature of tort law, supporting the view that fault, rather than corrective justice, is the better interpretation and justification of Anglo-American tort doctrine. (shrink)

A popular way to try to justify holding defendants criminally responsible for inadvertent negligence is via an indirect or ‘tracing’ approach, i.e. an approach which traces the inadvertence back to prior culpable action. I argue that this indirect approach to criminal negligence fails because it can’t account for a key feature of how criminal negligence should be (and sometimes is) assessed. Specifically, it can’t account for why, when considering whether a defendant is negligent, what counts as a risk should (...) be assessed relative to the defendant’s evidence. (shrink)

When a plaintiff has been negligent in the sense that he should have acted otherwise, should the same criterion of negligence apply that would apply if he were creating risks only to others? Indeed, are there any persuasive reasons not to apply a radically different criterion of negligence? Moreover, should the plaintiff's recovery be diminished, outside the category of assumption of risk, even when the plaintiff has not been negligent? What are the justifiable criteria and limits of such plaintiff (...) strict responsibility? There are reasons for caution before concluding that a victim's self-regarding conduct is negligent. A victim often deserves special sympathy in the light of his special predicament, choosing between two evils, the immediate costs of which he must personally bear. Indeed, it might appear that the law is unfair or unduly onerous when it places significant demands on a victim with respect to his own self-regarding behavior. On the other hand, we should not forget that the victim's “duty” to use reasonable care is merely conditional: it applies only in case the victim seeks a remedy against the tortfeasor. (shrink)

The article examines what has come to be known as "the risk analysis" in Anglo-American tort law and contract law. The risk analysis essentially consists of: viewing negligence as a relational concept, so that a defendant is never simply negligent tout cour, but is negligent only with respect to certain persons and certain harms — other harms suffered by other persons are said not to be "within the risk" that makes the defendant negligent; and the supplanting of (...) proximate cause doctrine with doctrines of duty, the duty question being determined by the question of whether a certain person and a certain harm are within the risk that makes a defendant negligent. The article aims to explode entirely the risk analysis. After beginning with an examination of the historical roots of the risk analysis, we then seek to show that the risk analysis is: conceptually incoherent because it seeks to isolate a risk that makes someone negligent; normatively undesirable because it allows quite blameworthy actors not to pay for the harms they culpably cause; and descriptively inaccurate of the cases decided on the more traditional, proximate cause bases. (shrink)

Negligence reminds us that we often do and cause things unawares, occasionally with grave results. Given the lack of foresight and intention, some authors argue that people should not be judged culpable for negligence. This paper offers a contrasting view. It argues that gaining control is itself a fundamental responsibility, with both collective and individual elements. The paper underlines both sides, focussing on how they relate as we ascribe responsibility or culpability. Following the introduction, Section 2 argues that conscious awareness (...) is neither necessary nor sufficient for control. Control is not a property of deliberate choice, so much as a practical achievement. Section 3 stresses the collective aspects of non-negligence: creating knowledge about risks, structuring environments to guard against them, and developing standards of care. Failings in the collective task, rather than lack of individual control, mean it can often be unfair to pin culpability on a single individual. Section 4 suggests that a basic duty of a responsible person is to acknowledge the ways in which we may do more or less than we mean to, often in ways that create risks. It then sketches an approach to culpability as part of a collective exercise: as we take responsibility for standards of care, and for our own and others’ agency. (shrink)

This paper investigates the circumstances under which it is morally permissible to impose non-negligible risks of serious harm on innocent civilians in order not to endanger tangible cultural heritage during armed conflict. Building on a previous account of the value of cultural heritage, it is argued that tangible cultural heritage is valuable because of how it contributes to valuable and meaningful human lives. Taking this account as the point of departure I examine the claim that commanders should be prepared (...) to risk lives of innocent civilians in order to avoid harm to tangible cultural heritage. I argue that imposing high risks of serious harm on innocent civilians without their consent constitutes a wrong that can be justified only in order to avoid a greater evil. It is then argued that damage to cultural heritage sites rarely constitutes the greater evil when weighed against the imposition of non-consensual risks of serious harm on innocent civilians, especially when the risk is substantial. Still, imposing substantial risks might be morally permissible under the condition that they are consensually imposed, even if they are not the lesser evil. However, I argue that even if one has reason to suspect that there are civilians who might consent to at least some significant risks in order to avoid damage to their cultural heritage, it is not clear that commanders should take this into account when deciding what to do. Unless all of those who are at risk consent, the fact that some of those whose lives are at risk consent to the risk of being killed do not make it morally permissible to impose this risk on the group as a whole. (shrink)

Negligence is a problematic basis for being morally blamed and punished for having caused some harm, because in such cases there is no choice to cause or allow—or risk causing or allowing—such harm to occur. The standard theories as to why inadvertent risk creation can be blameworthy despite the lack of culpable choice are that in such cases there is blame for: (1) an unexercised capacity to have adverted to the risk; (2) a defect in character explaining (...) why one did not advert to the risk; (3) culpably acquiring or failing to rid oneself of these defects of character at some earlier time; (4) flawed use of those practical reasoning capacities that make one the person one is; or (5) chosen violation of per se rules about known precautions. Although each of these five theories can justify blame in some cases of negligence, none can justify blame in all cases intuitively thought to be cases of negligence, nor can any of these five theories show why inadvertent creation of an unreasonable risk, pure and simple, can be blameworthy. (shrink)

Doug Husak suggests that sometimes an actor should be deemed reckless, and not merely negligent, with respect to the risks that she knowingly created but has forgotten at the moment of action. The validity of this conclusion, he points out, depends crucially on what it means to be aware of a risk. Husak’s neutral prompt and counterfactual actual belief criteria are problematic, however. More persuasive is his suggestion that we understand belief, in this moral and criminal law context, as (...) a concept whose meaning is determined by its function as a culpability standard. Husak concludes that inadvertent actors are often less culpable than knowing-but-later-forgetful actors; this is plausible, but there are also numerous counterexamples. Holly Smith focuses on negligence cases in which an agent’s failure to notice a risk stems, not from a prior culpable choice, but from an objectionable attitude or set of attitudes. She is right to emphasize that genuine moral culpability does not depend on conscious choice. However, Smith also asserts that decisions that flow from an actor’s objectionable attitudes are only rarely culpable, because they often do not arise from a reasonably full configuration of the actor’s motives. This last requirement is, I fear, an unrealistic and unnecessarily demanding criterion of culpability. Even when many of the actor’s evaluative attitudes are inactive in Smith’s sense, the actor might deserve blame for not bringing them to bear on his decision. Michael Moore and Heidi Hurd thoroughly explore, and find deficient, H.L.A. Hart’s unexercised capacity theory of negligence. They are correct that that theory requires a further judgment: an actor’s inadvertence is culpable only if he had the capacity to have adverted if X where X is the source of the actor’s moral desert. They overstate, however, in suggesting that the capacity issue falls out of the picture once we identify that underlying desert basis. The authors also worry that if desert is grounded on an underlying vice, we lack a reliable way of ranking the different vices that might explain the actor’s inadvertence; this is not a fatal objection, however, because negligence determinations are quite feasible even in the absence of clear rankings. Moore and Hurd conclude by identifying eight distinct categories in which criminal liability for negligence is justifiable. Negligence is indeed a surprisingly complex and pluralist concept. The three articles in this symposium brightly illuminate some of the most fundamental conceptual and normative issues in the debate over whether it is just to blame and punish the negligently inadvertent. (shrink)

Negligence, the creation of an unjustifiable risk of harm, plays a pivotal role in both criminal and civil law. This article takes up two negligence-related problems unique to its role in the criminal law. The first has to do with its "harm" component, the second with its "unjustifiability" component. The first problem is why the criminal law distinguishes so sharply between negligent wrongdoing that results in harm and negligent wrongdoing that does not, when it does not distinguish equally sharply (...) between intentional wrongdoing that results in harm and intentional wrongdoing that does not. The answer has to do with a peculiar feature in the logic of intention and with the symmetric way we ascribe responsibility for blameworthy and praiseworthy actions. My second problem is why the criminal law judges the blameworthiness of negligent actions on the basis of the harm wrought rather than the gap between the harm wrought and the justification for risking it. The answer has to do with a more general feature of the criminal law, the refusal to recognize "partial defenses" and "partial offenses.". (shrink)

It has been argued that the precautionary principle is incoherent and thus useless as a guide for regulatory policy. In a recent paper in Bioethics, Wareham and Nardini propose a response to the ‘precautionary paradox’ according to which the precautionary principle's usefulness for decision making in policy and regulation contexts can be justified by appeal to a probability threshold discriminating between negligible and non‐negligible risks. It would be of great significance to debates about risk and precaution if (...) there were a sound method for determining a minimum probability threshold of negligible risk. This is what Wareham and Nardini aim to do. The novelty of their approach is that they suggest that such a threshold should be determined by a method of public deliberation. In this article I discuss the merits of Wareham and Nardini’s public deliberation method for determining thresholds. I raise an epistemic worry about the public deliberation method they suggest, and argue that their proposal is inadequate due to a hidden assumption that the acceptability of a risk can be completely analysed in terms of its probability. (shrink)

What is the proper role of cost-benefit analysis in understanding the tort concept of negligence or reasonable care? A straightforward question, you might think. But it is a question that manages to elicit groans of exasperation from those on both sides of the controversy. For most utilitarians and adherents to law and economics, the answer is obvious: to say that people should not be negligent is to say that they should minimize the sum of the costs of accidents and the (...) costs of preventing accidents. Under the economic formulation of the famous Learned Hand test, they should take a precaution if but only if the marginal costs (or burden, B) of that precaution are less than its marginal benefits (in the form of reduced risks of injury, measured by multiplying the probability (P) of the injury times the magnitude (L) of the injury if it occurs). If B>PxL, it would be absurd to require the greater expenditure, B. For many advocates of a fairness, corrective justice, rights-based, or contractualist perspective, the opposite answer is equally obvious. Permitting a person to impose risks of harm on others merely because he would thereby obtain a benefit (or would otherwise incur a burden) greater than the discounted value of the harm he might inflict, amounts to authorizing him to dump the costs of his risky activities on innocent victims. To permit this type of sacrifice of individuals on the altar of aggregate social welfare is morally abhorrent. Both sets of criticism have important elements of truth. Neither an unqualified cost-benefit analysis nor an unqualified rights-based rejection of tradeoffs is defensible - either as a description of tort doctrine and practice or as a normative prescription. However, a qualified (sensitive) consequentialist approach can accommodate legitimate criticisms of cost-benefit analysis: the consequentialist can launder preferences, and can consider the distribution of risk both in the social welfare calculus and in determining whether to compensate. At the same time, a qualified (tough-minded) deontological approach can accommodate the legitimate need to recognize tradeoffs: the deontologist can permit intrapersonal but not interpersonal aggregation of risks and benefits, can apply the concept of threshold deontology to risky activity, and can consider individual rather than population risk. I conclude that the formulation of the Learned Hand test found in the Restatement Third of Torts is broad enough to encompass each of these qualified approaches. (shrink)

The question of when a person is culpable for taking an unjustified risk of harm has long been controversial in Anglo-American criminal law doctrine and theory. This survey of the approaches adopted in England and Wales, Canada, Australia, the United States, New Zealand and Scotland argues that they are converging, to differing extents, around a 'Standard Account' of culpable unjustified risk-taking. This Standard Account distinguishes between awareness-based culpability and inadvertence-based culpability for unjustified risk-taking. With reference to criminal (...) law theory and philosophical literature, the author argues that, when explained appropriately, the Standard Account is defensible and practical. Defending the Standard Account involves analysing in depth a number of controversial matters, including the meaning of advertence/awareness, the role of attitudes such as indifference in culpable risk-taking, and the question of whether negligence should be used in the criminal law. (shrink)

Systemic risks are risks produced through interconnected non-wrongful actions of individuals, in the sense that an individual's action is a negligible cause of the risk. Due to scale effects of interaction, their consequences can be serious but they are also difficult to predict and assess via a risk assessment. Since we can have good reason to engage in the interconnected activities giving rise to systemic risk, we incur a concurrent collective responsibility to ensure that the risks (...) are fairly distributed and well regulated. James argues that fairness in this context requires taking reasonably available precautions ensuring for each risk-bearer a favourable ratio of expected benefits over expected losses. In sections 2 and 3 we argue that such a conception of fairness applies but only on the condition that the systemic risks created are irreversible risks and that the general background conditions of justice are imperfectly fair. When risks are reversible, compensatory justice can correct for unfairness in risk imposition. Where risks are irreversible, compensatory justice necessarily fails, giving rise to a collective responsibility to regulate fairly ex ante. Additionally, where background conditions of justice are fully fair and the systemic risk is well understood, risk bearers can be said to have consented to the systemic risk. If they are not fair, we argue that the primary political obligation should lie in fixing the fairness of the backgrounds of justice. A related reason for addressing the general background conditions of fairness is that James’ account of fairness in systemic risk imposition encounters a baseline problem. If expected risks and benefits are calculated again an unfair historic background condition, systemic risk imposition would not be fully fair. Section 4 shows why differences in evidentiary uncertainty as to probability and levels of harm and effective responses require a normatively appropriate response in the form of additional precautions. We show that the evidentiary standards set for risk-based cost-benefit analysis have a connection with deontology because they express a postulate of equal treatment in formal terms. Systemic risks can have different possible degrees of epistemological certainty due to factors of social and natural origin, such as more available research funding or higher degrees of complexity for some systemic risks but not others. These differences have to be mitigated by taking even greater precautions in difficult-to-research systemic risks. (shrink)

Two professionals who treated Jack Adcock before his death were convicted of gross negligence manslaughter, receiving 24-month suspended sentences. His nurse, Isabel Amaro, was erased from the nursing register; but after reviews in the High Court and Court of Appeal, his doctor, Hadiza Bawa-Garba, was merely suspended. This article explores the proposition that nurses are at greater risk of erasure than doctors after gross negligence manslaughter through a close reading of the guidance for medical and nursing tribunals informed by (...) analysis from the High Court and Court of Appeal in the Bawa-Garba cases. Examination of the relevant sections of the guidance for medical and nursing tribunals reveals no significant differences. An outline of the conduct that amounted to breach of duty of care by Amaro and Bawa-Garba shows that their conduct could satisfy the thresholds for erasure given in their professions’ respective guidelines for tribunals. Both presented similar mitigating evidence, although this cannot be weighed heavily in a professional tribunal setting. Thus, Amaro was treated more harshly than Bawa-Garba without a simple explanation. However, I suggest that the Nursing and Midwifery Council’s Conduct and Competence Committee made a mistaken ‘presumption of erasure’ for gross negligence manslaughter and misinterpreted the sway that sentencing remarks should hold over tribunals. Both of these types of error were criticised by the Court of Appeal in Bawa-Garba. Furthermore, the Conduct and Competence Committee did not flesh out its analysis of ‘public confidence’ or acknowledge Lord Hoffmann’s caution against ending ‘useful’ careers for the sake of public confidence, but Bawa-Garba’s legal team ensured these arguments were taken into account by the Medical Professional Tribunal. The Conduct and Competence Committee’s failures are not inherent to Nursing and Midwifery Council procedure or policy. Rather Amaro’s self-representation appears to have impaired her access to justice. Tribunals must accept their right, and responsibility, to reach their own conclusions. (shrink)

This dissertation analyzes three legal doctrines that regulate unintentional aspects of criminal conduct. Chapter one defends the influence the law grants to an action’s unintended results in determining the extent of the agent’s criminal liability. First, I critique the argument that criminal law’s general mens rea requirement allows a result to affect the extent of a defendant’s criminal liability only if he possesses mens rea with respect to that result. The rules that define offenses and the rules that specify sentences (...) for individual criminal actions each guide conduct, but they do so differently. Effective offense definitions must be framed in terms of mental states, but effective sentencing rules need not be; therefore, mens rea must set the limits of liability, but the extent of liability need not depend on mens rea alone. Second, I argue that sentencing rules can most effectively guide offenders to reduce the risk that their offenses will unintentionally cause harm if those rules grade the seriousness of each offense based on its results, since the primary alternative, grading offenses based on their risk, requires methods of measuring and communicating risk that exceed the capacities of the criminal justice system. While chapter one addresses the extent of liability, chapters two and three address its scope: each presents an account of one of the two types of mens rea used to define unintentional crimes. Recklessness, the subject of chapter two, is often analyzed as requiring defendants to possess a belief (or similar mental state) directed towards the degree of risk an action creates. Defining offenses in terms of an agent’s beliefs about risk, however, guides individuals to evaluate actions in deliberation by estimating the degree of risk they create. And because individuals ordinarily cannot estimate risks accurately, such rules will not effectively guide them to reduce harm. Effective rules, I will argue, must identify prohibited actions in a different way—namely, through the features of those actions that make them unreasonably risky. The definition of recklessness does not itself identify those features directly; instead, by requiring individuals to comply with the standard of conduct of the law-abiding person, recklessness indirectly incorporates into law the social norms that regulate dangerous activities. To be reckless, then, defendants must recognize the features of their conduct in virtue of which it violates such a norm. Finally, chapter three analyzes negligence. Criminal negligence is paradoxical: even though culpability ordinarily requires advertence, negligent defendants are typically understood to be culpable for a risk they inadvertently create. Rather than rejecting culpability for negligence or expanding culpability beyond advertence, I dissolve the paradox by reconceptualizing negligence. Negligent defendants are culpable despite their failure to perceive one risk because they advert to a different risk—the risk that by failing to inquire before acting they will fail to uncover evidence of the risk that they do, in the end, actually fail to perceive. Negligence is epistemic recklessness, the culpable disregard of the risk of inadvertently performing a risky action. Though negligence, like recklessness, involves advertence to risk, it constitutes a distinct form of mens rea because it regulates a different aspect of conduct—the decision to inquire rather than the decision to act. And because omitting inquiry creates only a risk of a risk, negligence is systematically less risky than recklessness, and therefore less culpable. (shrink)

Recent theoretical analysis has exhibited a structural ambiguity in the normative foundation of the tort of negligence, namely uncertainty whether liability is based on the breach of a legal duty or on the responsibility for the victim's loss. This normative ambiguity is due to the fact that the European law of extracontractual liability was conceptually framed for purposes totally different from modern ideas of fair distribution of risks that have historically been connected with rights- based conceptions of tort law. From (...) a comparative point of view it becomes apparent thatdf the idea of protecting individual rights by tortious remedies is constitutive for the modern European law of extracontractual liability, although hidden beyond the dominant terminology of duties, breach and wrong. Thus it is submitted that a rights-based analysis of the law of torts offers a significantly better understanding than traditional duty-models can achieve. (shrink)

Singapore, a highly affluent island city-state located in Southeast Asia, has increasingly leveraged new assisted reproductive technologies (ART) to overcome its dismal fertility rates in recent years. A new frontier in ART is preimplantation genetic testing (PGT) for polygenic risk scores (PRS) to predict complex multifactorial traits in IVF (in vitro fertilisation) embryos, such as type 2 diabetes, cardiovascular diseases and various other characteristics like height, intelligence quotient (IQ), hair and eye colour. Unlike well-known safety risks with human genome (...) editing, there are negligible risks with PGT-P, because there are no man-made genetic modifications that can be transmitted to future generations. Nevertheless, the current efficacy of using PGT-P to select IVF embryos for either increased or decreased probability of developing specific polygenic traits is still far from certain. Hence, the regulatory safeguards proposed here will be based on the assumption that the efficacy of this new technology platform has already been validated. These include: (1) restricting the application of PGT-P only for prevention of clinically relevant polygenic disease traits, (2) securely blocking patients’ access to the raw genomic DNA sequencing data of their IVF embryos, (3) validating diagnosis of polygenic disease traits in the prospective parents/grandparents of IVF embryos, and restricting PGT-P only for preventing specifically diagnosed polygenic disease traits and (4) mandating rigorous and comprehensive genetic counselling for IVF patients considering PGT-P. There is an urgent and dire need to prevent abuse of the PGT-P technique, as well as protect the interests and welfare of patients if its clinical application is to be permitted in the country. (shrink)

Standard theories of liability say that X is liable to Y only if Y was harmed, only if X caused Y harm, and (usually) only if X was at fault. This article offers a series of criticisms of each of these claims, and use them to construct an alternative theory of liability in which the nature of X's having imposed a risk of harm on Y is central to the question of when X is liable to Y, and for (...) how much. The article ends with some conjectures on ignorance as an excusing condition. (shrink)

Because they track the Model Penal Code, current criminal law formulations of risk offenses typically fail to distinguish the rule of conduct question—What risks does the criminal law prohibit?—from the adjudication question — When is a particular violator’s conscious disregard of, or his inattentiveness to, a risk in a particular situation sufficiently condemnable to deserve criminal liability? Instead, the formulations address only the second question — through their definition of reckless and negligent culpability — and fail to provide (...) a rule of conduct provision to define a prohibited risk. This reliance upon culpability definitions as the core of risk-creation offense definitions is problematic because it fails to announce a useable conduct rule that describes those risks the law prohibits. Instead, this approach subjectivizes the definition of prohibited risks. What may be held "reckless" or "negligent" for one person may not be "reckless" or "negligent" for another person in the identical situation — an effect that strips case adjudications of their value in educating the community as to risks that the rules of conduct prohibit. Current risk-creation offenses also are problematic because they make results — including the creation of a prohibited risk — irrelevant to criminal liability. While this is consistent with the Model Code’s view that resulting harm is insignificant, that only culpable state of mind ought to affect liability, it is inconsistent with the view of most state code drafters. Thus, while the Model Code grades offenses without regard to whether a prohibited risk in fact is created, most state codes logically would want to grade lower in the absence of a prohibited risk. These two fundamental problems—the failure to distinguish conduct rules and adjudication rules and the confusion over the significance of results — are related. The Model Penal Code’s general failure to distinguish conduct and adjudication rules made it less likely that state code drafters would notice what they would have seen as the Code’s inappropriate subjectivization of risk and risk offenses. If the Model Code had systematically segregated conduct and adjudication rules, it would have been more obvious to state code drafters that the Code’s formulation of risk-creation offenses was one that they could not accept. (shrink)

What makes careless conduct careless is easily one of the deepest and most contested questions in negligence law, tort theory, and moral theory. Answering it involves determining the conditions that make the imposition of risk unjustifiable, wrong, or impermissible. Yet there is a still deeper as well as overlooked and undertheorized question: Why does subjecting others to risk of harm call for justification in the first place? That risk can be impermissibly imposed upon otherspresupposes that imposing (...) class='Hi'>risk is the kind of thing that can be impermissible. Unless imposing risk can be impermissible after all, unjustified risking is literally impossible. In this discussion, I explore what I call the moral significance of risking, arguing that the moral significance of risking resides in a certain kind of nonmaterial autonomy interest that is implicated whenever one imposes risk of harm on another. (shrink)

Faith healing deaths occur infrequently in Canada, but when they do they pose a considerable challenge for criminal justice. Similar to caregivers who absent-mindedly and fatally forget a child in a hot vehicle, faith healers do not intentionally harm their children. It can seem legally excessive and unjust to prosecute achingly bereaved parents. But unlike ‘hot-car’ deaths, faith healing parents are not absent minded in the deaths they cause. Rather, significant deliberation and strength of will is necessary to treat their (...) child’s ailment with faith alone. Two different Criminal Code provisions can be brought to bear upon these deaths, namely, s. 215 ‘Failing to provide the necessaries of life’ and s. 219 ‘Criminal negligence’. From a public, medical, and scientific perspective treating potentially fatal ailments with ‘faith’ and ‘prayer’ seems like reckless endangerment, giving apparent justification to the more serious criminal negligence charge. But, the fault element in the criminal negligence offence continues to be a vexing issue in Canadian jurisprudence. People accused of negligence-based offences are commonly held to the standard of what a reasonable person might predictably have done in similar circumstances. While it is unnecessary for the impartial trier of fact to conceive of faith healing as ‘reasonable’, it is an open question whether faith healers are sufficiently unreasonable to warrant serious criminal condemnation and possible incarceration when their course of action causes death. Is it justifiable to think of faith healers who cause death as criminally unreasonable? That is, do they depart markedly enough from the standard that criminal negligence is rightly attributed to them? Public attitudes toward religion, religious fundamentalism, and healthcare must be considered when trying to discern what a reasonable person does when treating an ailing child at risk of death. (shrink)

The distinction between the criminal fault elements of recklessness and negligence is one of Anglo-American criminal law’s key distinctions. It is a distinction with practical significance, as many serious crimes require at least recklessness and cannot be committed negligently. The distinction is standardly marked by awareness. Recklessness requires awareness that one’s conduct carries a risk of harm. Negligence only requires that one ought to have been aware that one’s conduct carried such a risk, even if one was in (...) fact unaware of this. But should the recklessness/negligence distinction be marked by awareness of risk, or by something else? Does a defendant’s awareness of risk really have the normative significance to mark such a distinction? In this paper, I answer these questions by discussing a challenge to this ‘standard account’ of the recklessness/negligence distinction raised by the work of Antony Duff, who defends an alternative, non-awareness-based model of the recklessness/negligence distinction. I will argue that, although Duff’s alternative model fails, seeing how it goes wrong helps us see how awareness genuinely does have the right kind of normative significance to mark the distinction between recklessness and negligence. (shrink)

This paper discusses the risk of gross negligence manslaughter (GNM) and corporate manslaughter charges (CM) when clinicians use an artificially intelligent system’s (AIS’s) outputs in their practice. I identify the elements of these offenses within the context of the law of England and Wales and explore how they could be applied in a potential scenario where a patient's death has followed AIS use by a clinician. The risk of a conviction due to making an AIS-augmented workplace mistake highlights (...) the non-trivial nature of AIS adoption in healthcare, and that the consequences of its use must be considered by all interested parties prior to AIS adoption. (shrink)

In this article, responding to assertions that the principle of double effect has no place in legal analysis, I explore the overlap between double effect and negligence analysis. In both, questions of culpability arise in situations where a person acts with no intent to cause harm but where reasonable foreseeability of unintended harm exists. Under both analyses, the determination of whether such conduct is permissible involves a reasonability test that balances that foreseeable harm against the good intended by the actor's (...) conduct. In both, absent a finding that the foreseeable harm is unreasonable in light of that intended good, no liability will be imposed upon the actor. Even conceding, however, such general similarity between double effect and negligence analysis - disagreement over the proper interpretation of the reasonability criterion at play in negligence poses an additional challenge for the attempt to correlate negligence with double effect. Economic efficiency interpretations of negligence, for example, purportedly based on the Learned Hand Formula and the RESTATEMENT (SECOND) OF THE LAW OF TORTS, propose that culpability depends upon a utilitarian balancing of good effects of conduct (utility) versus its harmful foreseeable consequences (magnitude of risk of injury). Based on such an interpretation of negligence, however, contrasts between actors' states of mind, and normative differences between kinds of goods and harms, ultimately fade into the background and become irrelevant as essential conditions for properly assessing liability. This article elaborates and defends the view that double effect analysis lies at the heart of negligence theory. Part I elucidates in more detail the principle of double effect and describes its prima facie operation in negligence analysis. Part II considers and rejects the economic efficiency interpretation that has been offered as a theory of negligence, overcoming the challenge that such an interpretation presents for the effort to locate double effect analysis in the law. Part III illustrates and confirms the overlap between double effect and negligence by consideration of a series of case applications. The Article proposes that the weighing of conflicting values in double effect analysis and negligence is not achieved - as proposed by law and economics theory with respect to negligence - by imposing a consequentialist-utilitarian reduction of all value to a single concept of good and eliminating the relevance of traditional state of mind distinctions between intention and foreseeability. Instead, each mode of analysis recognizes that distinct culpability determinations flow naturally and plausibly from an appreciation of the traditional legal distinctions made between various types of goods and harms, and upon whether such goods and harms come about as result of an actor's intention or mere foreseeability. Keywords: Double effect, negligence, intention, foreseeability, choice, law and economics, utilitarianism, consequentialism, weighing of values. (shrink)

This paper explores whether it is possible to use Kant's writings on law and his Principle of Right to develop a theory of tort liability for the unintended harmful consequences to other persons that materialize from the wrongful risks created by human actions. The paper uses PR to identify such risks, and imputes to their authors the wrongful hindrances of other persons that result from them. PR protects the freedom of action of human agents, but it also permits them to (...) exercise that freedom by assuming or consenting to the creation of risks towards themselves, and the harms that materialize from such risks are imputed to those voluntary risk bearers. The paper also explains how PR entails both strict liability and negligence, in different domains of tort law, as standards of tort liability, so that neither of those standards is the fundamental principle of tort law; that principle, instead, appears to be the the Principle of Right. Der Beitrag untersucht, ob es möglich ist, Kants Rechtslehre und sein Allgemeines Prinzip des Rechts zu benutzen, um eine Theorie der deliktischen Haftung für Fahrlässigkeitstaten zu entwickeln. Fahrlässigkeitstaten sind rechtswidrige menschliche Handlungen, die unbeabsichtigt Gefahren für andere verursachen, durch die schädliche Folgen für diese anderen entstehen. Der Artikel benutzt das Allgemeine Prinzip des Rechts, um solche Risiken festzustellen und ihren Urhebern die daraus resultierenden rechtswidrigen Verletzungen anderer Personen zuzurechnen. Das Prinzip schützt die Handlungsfreiheit. Aber es erlaubt den handelnden Personen auch, diese ihre Freiheit auszuüben, insofern es ihnen gestattet, Risiken für sich selbst zu schaffen. Die dadurch entstehenden Schäden werden dem Handelnden auch zugerechnet, weil er die entsprechenden Gefahren freiwillig übernommen hat. Der Artikel erklärt, wie das Allgemeine Prinzip des Rechts in den verschiedenen Bereichen des Deliktsrechts bald eine Gefährdungshaftung, bald eine Haftung für Fahrlässigkeit begründet. Keiner dieser Standards enthält das eigentliche Grundprinzip des Deliktsrechts. Das Grundprinzip ist statt dessen Kants Allgemeines Prinzip des Rechts. (shrink)

This paper explores how the widely acknowledged conception of tort law as corrective justice is to be applied to the law of negligence. Corrective justice is an ordering of transactions between two parties which restores them to an antecedent equality. It is thus incompatible with the comprehensive aggregation of utilitarianism, and it stands in easy harmony with Kantian moral notions. This conception of negligence law excludes both maximizing theories, such as Holmes' and Posner's, and Fried's risk pool, which combines (...) Kantianism with distributive rather than corrective justice.Central to the Kantian approach is the impermissibility of self-preference. The two types of self-preference, self-preference in conception and self-preference in action can respectively account for the objective standard and the Learned Hand test, which are the two most characteristic features of negligence and which are generally (and wrongly) considered to be inescapably aggregative. This corrective justice conception of the negligence standard can then be compared to Epstein's corrective justice conception of strict liability, and arguments can be offered in favour of the superiority of the former. (shrink)

Historically, the standard of care in medical negligence provided considerable scope for external evaluation of clinical judgment. Under the Bolam test, however, determining the standard was seen by the courts as essentially a matter for the medical profession, to be resolved by expert testimony with minimal court scrutiny. In recent years, courts have become more willing to probe such testimony and challenge the credibility of medical experts, although they would very rarely override clinical judgment. The House of Lords' decision in (...) Bolitho may be construed as inviting courts to reach their own conclusions on the reasonableness of clinical conduct, along standard risk–benefit lines, after having made their own assessment of the expert opinion. Closer scrutiny of such opinion is the more welcome in the light of current concerns about partisanship in expert testimony. (shrink)

Among various kinds of disclosures typically required in research as well as in clinical scenarios, risk information figures prominently. A key question is, what kinds of risk information would the reasonable person want to know? I will argue, however, that the reasonable person construct is and always has been incapable of settling this very question. After parsing the nebulous if not “contentless” character of the reasonable person, I will explain how Western courts have actually adjudicated cases of “negligent (...) nondisclosure,” that is, cases in which patient‐plaintiffs allege that their informed consent rights were violated by the failure of their health providers to inform them of reasonably foreseeable risks that subsequently materialized. To support my argument, I will scrutinize the landmark decision by the United Kingdom's Supreme Court in Montgomery v. Lanarkshire Health Board and, in particular, Justice Brenda Hale's concurrence. (shrink)

We report in this paper the result of three experiments on risk, ambiguity and time attitude. The first two differed by the population considered (students vs. general population) while the third one used a different protocol and concerned students and portfolio managers. We find quite a lot of heterogeneity at the individual level. Of principal interest was the elicitation of risk, time and ambiguity attitudes and the relationship among these (model free) measures. We find that on the student (...) population, there is essentially no correlation. A non negligible fraction of the population behaves in an extremely cautious manner in the risk and ambiguity domain. When we drop this population from the sample, the correlation between our measures is also non significant. We also raise three questions linked to measurement of ambiguity attitudes that come out from our data sets. (shrink)

On one view of ethical development, someone not yet virtuous can reliably progress by engaging in what meaningfully resembles virtuous conduct. However, if the well-intended conduct is psychologically demanding, one's character, precisely because one is not yet virtuous, may worsen rather than improve. This risk of degradation casts doubt on the developmental view. I counter the doubt through one interpretation and one application of the Mengzi. In passage 2A2, invoking the image of a farmer who “helped” the crop grow (...) by pulling the sprouts, MENG Ke cautions, “do not help it grow.” I defend a novel interpretation: do not advance with a naïve negligence about your psycho-physiological constitution. I also show how to advance with realistic care by pointing out an overlooked application of a much-discussed cultivation technique illustrated in Mengzi 1A7: ethical reflection can conciliate one with one’s ongoing or past advanced action, lowering the action’s risk of degradation. (shrink)

All ordinary decisions involve some risk. If I go outside for a walk, I may trip and injure myself. But if I don’t go for a walk, I slightly increase my chances of cardiovascular disease. Typically, we disregard most small risks. When, for practical purposes, is it appropriate for one to ignore risk? This issue looms large because many activities performed by those in wealthy societies, such as driving a car, in some way risk contributing to climate (...) harms. Are these activities morally appropriate? -/- In this paper, I first summarize and respond to some arguments that purport to show that it is appropriate to ignore or discount very small risks. I argue that because our rationality is bounded, it is impossible for us to include every small risk in our decision-making process, and so we may reasonably use heuristics to guide many decisions. However, contrary to some thinkers, I argue that this does not violate the spirit of expected value theory; it merely shows that we should adopt a so-called "two-level" view. Our use of heuristics allows for the reasonable ignoring of some risks, and this perhaps explains why one might be inclined to think that individual climate-related risks are negligible. However, virtually all greenhouse-gas emitting activities in fact have some climate risk on the negative side of the ledger, and the use of heuristics does not permit the general ignoring of climate-change-related risk by individuals on grounds of expediency of judgment and decision-making. (shrink)

This article investigates a high-profile and ongoing dilemma for healthcare professionals (HCPs), namely whether the existence of a (legal) duty of care to genetic relatives of a patient is a help or a hindrance in deciding what to do in cases where a patient’s genetic information may have relevance to the health of the patient’s family members. The English caseABC v St George’s Healthcare NHS Trust and othersconsidered if a duty of confidentiality owed to the patient and a putative duty (...) of care to the patient’s close relatives could coexist in this context. This article examines whether embracing the concept of coexisting duties could enable HCPs to respect duties in line with their clinical judgement, thereby providing legal support and clarity to professionals to allow them to provide the best possible genetics service to both the patient and their family. We argue that these dual duties, framed as a novel, composite duty to consider the interests of genetic relatives, could allow HCPs to exercise and act on their professional judgements about the relative value of information to family members, without fears of liability for negligence or breach of confidence. (shrink)

During times of emergency like the pandemic itself, governments are often seen as exercising “exceptional power”. Given the state of growing urgency in responding to the pandemic, there is a worry that governments may resort to exercising their exceptional power arbitrarily—either willingly, unintentionally or perhaps even negligently. When power is exercised by states or even by non-state actors arbitrarily over a person or group, that is, at their own will in the absence of appropriate institutional checks and balances, republican theorists (...) argue that we are confronted with a threat to our freedom as non- domination. In this chapter, I explore whether, and in what ways, worries about domination could surface in the context of government’s enforcement of risk- containment measures in response to the pandemic. While imposition of these measures is deemed necessary and important for reducing risks in response to the pandemic, their imposition is prima facie problematic if it constitutes or entails wrongful exercise of arbitrary power, thereby risking domination of citizens. I motivate this claim by examining India’s initial response to the Covid-19 pandemic, particularly focussing on the public health emergency legislature (or lack thereof) authorising the implementation of emergency risk-containment measures. (shrink)

Indices and orderings are developed for evaluating alternative strategies in the management of risk. They reflect the goals of reducing individual and collective risks, of increasing equity, and of assigning priority to the reduction and to the equity of high risks. Individual risk is defined as the level of exposure to a danger. In particular the role of a lower negligibility level is investigated. A class of indices is proposed which involves two parameters, a negligibility level and a (...) parameter of inequality aversion, and several interpretations of the indices are discussed. We provide a set of eight axioms which are necessary and sufficient for this class of indices, and we present an approach to deal with partial information on the parameters. (shrink)

Contemporary discussions of the relationship between negligence liability and the provision of services by both public and private organizations frequently suggest the emergence of a ‘compensation culture’. Despite empirical evidence that compensation culture claims are somewhat inflated, an anxiety persists that risks of tortious liability may still undermine the implementation of public policy. Concerns about the potential negative effects of liability on public administration frame the problem in various ways. First, there is an anxiety that public authorities may overreact to (...) liability risks by becoming excessively risk averse. Secondly, there is a fear that compensation claiming will divert financial resources away from service delivery and towards the payment of insurance premiums and compensation awards. Thirdly, there is the fear that insurance companies will, as ‘risk bullies’, curtail public service activities. And, finally, there is the suggestion that risk management, including legal risk management, is becoming the dominant mode of government decision-making to the exclusion of professional judgement. This article addresses these concerns through a set of empirical case studies about the management of liability risks associated with road maintenance services. Although our findings suggest that public authorities respond to liability risks in a variety of ways, we found only limited evidence of the above concerns. In general terms, it was a case of public authorities being risk aware and responsive as opposed to risk averse. (shrink)

Chiropractors commonly treat children for a variety of ailments by manipulating the spine to correct a ‘vertebral subluxation’ or a ‘vertebral subluxation complex’ alleged to be a cause of disease. Such treatment might begin soon after a child is born. Both major American chiropractic associations – the International Chiropractic Association and the American Chiropractic Association – support chiropractic care for children, which includes subluxation correction as a treatment or preventive measure. I do not know of any credible evidence to support (...) chiropractic subluxation theory. Any attempt to manipulate the immature, cartilaginous spine of a neonate or a small child to correct a putative chiropractic subluxation should be regarded as dangerous and unnecessary. Referral of a child to a chiropractor for such treatment should not be considered lest a bad outcome harms the child or leads to a charge of negligence or malpractice. (shrink)

Graphene is a nanomaterial with many promising and innovative applications, yet early studies indicate that graphene may pose risks to humans and the environment. According to ideas of responsible research and innovation, all relevant actors should strive to reduce risks related to technological innovations. Through semi-structured interviews, we investigated the idea of graphene as a risk held by two types of key actors: graphene researchers and innovation advisors at universities, where the latter are facilitating the movement of graphene from (...) the laboratory to the marketplace. The most common idea found is that graphene is not a risk due to, e.g., low toxicity, low amounts produced/used, and its similarity to harmless materials. However, some researchers and advisors also say that graphene is a risk, e.g., under certain conditions or due to a lack of risk-related information. We explain the co-existence of these seemingly contradictory ideas through the semantic ambiguity of the word risk and a risk/no-risk rhetoric, where risks are mentioned rhetorically only to be disregarded as manageable or negligible. We suggest that some of the ideas held by the researchers and innovation advisors constitute a challenge to responsible research and innovation regarding graphene. At the same time, we acknowledge the dilemma that the discourse of responsible innovation creates for the actors: denying graphene risks makes them irresponsible due to a lack of risk awareness, while affirming graphene risks makes them irresponsible due to their everyday engagement in graphene development. We therefore recommend more research into what researchers and innovation advisors should do in practice in order to qualify as responsible. (shrink)

Institute a proactive reputational management framework that matches individual behaviour to organizational values The Business Ethics Twin-Track is a practical guide to reputational risk management. A deep exploration of the concept of reputation, the ways in which it can suffer, and the consequences when it does, the book outlines an ethics controls framework that can mitigate risk and improve business performance. Readers will learn how to identify and manage weaknesses, and how to institute a system of governance that (...) embeds proper, ethical conduct into the corporate culture. A clear set of controls and procedures provides actionable instruction that can be customised to suit the organisational structure, and discussion of historical and international ethics provides the context for implementation. Case studies illustrate the real-world applications, while interviews with executives from a variety of sectors provide important practical insights into some of the key issues discussed in the book. The law regulates behaviour in health and safety and financial crime, but otherwise, conduct is largely determined by the culture, ethics and values of an organisation. Effective reputation management is complex, and often difficult to achieve, as much of the available information on the topic is more theoretical than practical. This book bridges the gap by providing the tools that will help managers to: Implement a modern ethics control framework, encompassing codes, officers, reporting lines and training Consider the role of the media and social media in reputational damage to individuals and organisations Analyse the key controls in responsibility and governance frameworks from around the world Determine the causes and controls of conduct risk, including incompetence, negligence and criminality Today's fast-paced media environment means corporate reputations can be obliterated in moments, and damage limitation is often too little, too late. Adopting the measures set out in this book will embed ethics into the culture, and match people's behaviours to the organisation's values. (shrink)

This book review sketches the main arguments of Findlay Stark’s book, and then goes on to develop an objection to Stark’s account of one of the core notions in the book—namely, awareness of risk.

Cultural comparisons enjoy increasing popularity in economics. Since cultural comparison must abandon random allocation to treatments, it is unclear whether differences found between countries can be attributed to country characteristics or are merely driven by differences in subject pools. In experiments in two Chinese cities and at two campuses in Ethiopia, we show that within-country differences are negligible. Differences between the two countries, on the other hand, are large.

The requirement for disclosure of risks of treatment as part of informed consent came before the Supreme Court of Canada in two 1980 cases. The Court found the duty of disclosure of risks to be based in negligence and not battery. The scope of the duty is not to be determined by medical evidence alone and requires the physician to disclose the nature of the proposed treatment, its gravity, any material risks and any special or unusual risks as well as (...) answering in a reasonable way all specific questions asked by the patient. Whether the patient would have decided differently if all the information were known is an objective test, based on what the reasonable person in the patient's particular circumstance would do. (shrink)

This paper reviews the work on gendered achievement in the English?speaking Caribbean, with its often explicit focus on underachieving males. However, patterns of gendered achievement are more likely region?specific and variegated in some contexts. In Trinidad and Tobago, the full?scale implementation of national assessments in 2004 provided an opportunity to evaluate mathematics and language performance across the entire pupil population at standards 1 (7? to 8?year?olds) and 3 (9? to 10?year?olds). Census data from the high?stakes 2003 Secondary Entrance Assessment (SEA) (...) administered at standard 5 (ages: 10?11+) were also included in the analysis. Therefore the entire dataset consisted of 52,284 primary school students (26,574 males and 25,710 females). The findings confirmed that female pupils had a statistically significant advantage on all assessments. However, in terms of practical significance, most differentials were negligible to small. Medium?sized differentials were obtained for pupils of low ability, living in rural educational districts, and on language arts. Male achievement scores were also more variable for lower grade levels, low ability groups and language arts. Paradoxically, in some educational districts secondary school placement opportunities still favoured males. These variegated patterns of gendered achievement may be associated with differences in institutional effectiveness and variations in male socialization practices that are especially evident across the urban?rural divide. (shrink)

Malpractice lawsuits serve as a great source of pain, consternation and loss for physicians and patients alike, usually leaving all parties involved in the process with a sense of betrayal. A significant number of physicians will be sued at least once in their career, especially if they practice in some of the more vulnerable specialties. In addition, there is some evidence that the threat of malpractice lawsuits changes the practice style of many physicians, leading to the practice of “defensive medicine” (...) and raises the total cost of health care. Clearly, the prevention of medical malpractice is an issue that deserves considerable attention from physicians and from those who train them.Empirical evidence suggests that medical negligence may play a relatively minor role in malpractice lawsuits. As demonstrated by Localio, et al., one in thirty-five cases of negligence or incompetence actually results in a lawsuit. (shrink)

Discrepancies between the Uniform Determination of Death Act (UDDA) and the adult and pediatric diagnostic guidelines for brain death (BD) (the “Guidelines”) have motivated proposals to revise the UDDA. A revision proposed by Lewis, Bonnie and Pope (the RUDDA), has received particular attention, the three novelties of which would be: (1) to specify the Guidelines as the legally recognized “medical standard,” (2) to exclude hypothalamic function from the category of “brain function,” and (3) to authorize physicians to conduct an apnea (...) test without consent and even over a proxy’s objection. One hundred seven experts in medicine, bioethics, philosophy, and law, spanning a wide variety of perspectives, have come together in agreement that while the UDDA needs revision, the RUDDA is not the way to do it. Specifically, (1) the Guidelines have a non-negligible risk of false-positive error, (2) hypothalamic function is more relevant to the organism as a whole than any brainstem reflex, and (3) the apnea test carries a risk of precipitating BD in a non-BD patient, provides no benefit to the patient, does not reliably accomplish its intended purpose, and is not even absolutely necessary for diagnosing BD according to the internal logic of the Guidelines; it should at the very least require informed consent, as do many procedures that are much more beneficial and less risky. Finally, objections to a neurologic criterion of death are not based only on religious belief or ignorance. People have a right to not have a concept of death that experts vigorously debate imposed upon them against their judgment and conscience; any revision of the UDDA should therefore contain an opt-out clause for those who accept only a circulatory-respiratory criterion. (shrink)

In this article, we claim that recent developments in climate science and renewable energy should prompt a reframing of debates surrounding climate change mitigation. Taken together, we argue that these developments suggest (1) global climate collapse in this century is a non-negligible risk, (2) mitigation offers substantial benefits to current generations, and (3) mitigation by some can generate social tipping dynamics that could ultimately make renewables cheaper than fossil fuels. We explain how these claims undermine familiar framings of (...) climate change, wherein mitigation is understood as self-sacrifice that individuals and governments must be morally persuaded or incentivized to undertake. [Open access]. (shrink)