Importing Notions in Health Law: Science and Proven Experience

Abstract

In Swedish law, the notion of ‘science and proven experience’ (in Swedish, vetenskap och beprövad erfarenhet) defines the gold standard for public decision-making and practice, especially in medicine. The notion is notoriously vague but nevertheless plays an important role in the distribution of rights and duties of patients and healthcare workers. For example, failure to provide care in accordance with this standard can lead to penal responsibility. The notion also helps to define Swedish patients’ right to reimbursement for cross-border healthcare. From a legal point of view, the notion is especially intriguing because it appears to import medical standards into the legal conceptual apparatus. The purpose of this article is to explore the mechanisms of this and kindred ‘importing notions’ by investigating the role that the notion of science and proven experience plays in Swedish law and in the transfer of information between the legal and medical fields.

The Ethical Spirit of EU Law

“…72 Furthermore, this chapter will cover human rights, with a special emphasis 68 For law and science, a relative approach has been preferred; Frischhut (2017, pp. 71-72), Wahlberg (2010, 208, 213;2017, p. 63), Wahlberg and Persson (2017). 69 Di Fabio (2004, p. 3).…”

“…24 CJEU judgment of 12 July 2001, Smits andPeerbooms, C-157/99, EU:C:2001:404, para 92 ("what is considered normal according to the state of international medical science and medical standards generally accepted at international level"); see also paras 94 and 98. On an intriguing project of importing non-legal (medical) concepts in the legal sphere (VBE research group on 'science and proven experience', https://www.vbe.lu.se/) see Wahlberg and Persson (2017). 25 As von Savigny (1951, p. 48) has emphasized in his book on legal methodology, every systematic approach leads to philosophy ("Alles System führt auf Philosophie hin.").…”

“…Supra Sect.1.4. 2 Wahlberg (2010Wahlberg ( , 208, 213, 2017,Wahlberg and Persson (2017).3 Frischhut (2015) 4. This approach has previously also been adopted by the Austrian Supreme Court judgment of 18 April 2012, Prostitution not against public morals, 3 Ob 45/12g, para 4.6.1: "When it comes to the understanding of 'public morals', generally accepted moral concepts can be taken into account.…”

Harnessing local knowledge for scientific knowledge production: challenges and pitfalls within evidence-based sustainability studies

“…In bilateral problem-feeding, the solutions to the problems are then fed back (to discipline 1 ). The simplest type of bilateral problemfeeding would thus consist of four steps (Wahlberg and Persson 2017): (1) the formulation of the problem in context 1 ; (2) the uptake (and reformulation) of the problem in context 2 ; (3) the solution of the problem in context 2 ; (4) the (reformulation and) acceptance of the solution in context 1 .…”

“…Thus, the problem, once extracted, needs to be fed, without distorting it too much (Wahlberg and Persson 2017), into the scientific domain. Furthermore, often, and ideally, problemfeeding is bilateral.…”