Health Legislation: Interpretation Coherent with Conscience and International Human Rights
Thomas Alured Faunce
Australian Research Council; Australian National University
April 25, 2005
CORCORAN S AND BOTTOMLEY S (EDS) INTERPRETING STATUTES, S. Corcoran and S. Bottomley, eds., pp. 299-317, Federation Press, Sydney, 2005
This essay seeks to explore some theoretical and practical obstacles to developing a coherent and comprehensive theory for the interpretation of health legislation. One obstacle considered involves the academic and professional reluctance to direct critical attention to interpretive actions outside the judicial sphere; in this case to those by health administrators, health professionals and patients. Another concerns a similar reticence to formally acknowledge the widespread utilization by such interpreters of principles derived from normative traditions distinct from many domestic legal systems, in particular those of medical ethics and international human rights. The third obstacle relates to the difficulties raised for interpretation of health legislation by community demands for greater transparency and quality assurance in the health care sector. Linked with this is the question whether interpretation of health legislation should be approached with a presumption that it promotes core social and professional virtues (such as justice, fairness and loyalty to relief of patient suffering) in the life narratives of those most directly affected.
Given existing presumptions that legislation will not seek to controvert basic principles of the common law or international law, it seems reasonable to for judiciary interprating an ambiguity to be required to presume that the relevant health legislation will not normally seek to overturn basic ethical principles of the doctor-patient relationship. Similarly justified would be a presumption that health legislation will not be interpreted to contravene basic ethical protections accorded research subjects through authoritative ethical codes and guidelines. Of like importance, as will be discussed, could be a rebuttable assumption that health legislation will not attempt to abrogate the primary fiduciary obligation and professional virtue of a doctor to remain loyal to the relief of suffering amongst his or her patients.
Number of Pages in PDF File: 23
Keywords: Health legislation, statutory interpretation, virtue ethics, conscience, international human rights, presumptions, fiduciary, normative
JEL Classification: I18, H41, K31Accepted Paper Series
Date posted: May 25, 2009
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