Presentation on theme: "KRISTINA KOCICOVA. → adults (sui juris) vs. Children (lack the capacity to give a valid consent, non-age) → the attending physician must obtain valid."— Presentation transcript:
→ adults (sui juris) vs. Children (lack the capacity to give a valid consent, non-age) → the attending physician must obtain valid consent to treatment otherwise he commits tort and crime
→ before any treatment the valid consent is needed to be given by the patient, CHILDREN ARE NOT EXEPTION BUT As they are not able to give such consent there must be someone who gives a consent instead → 3 situations may appear:
Gillick competent child → a) Gillick competent child (common law system) Child unable to give a valid consent → b) Child unable to give a valid consent (lack of intellectual ability to understand and/or lack of maturity to for a balanced judgement) Competent child who refuses to consent → c) Competent child who refuses to consent b + c b + c → substitute consent of parents, person with parental responsibility, court
→ the duty of doctors is to provide the best care recognised as appropriate in certain case → the role of parents: to give/ withhold the consent in the best interest of the child → if the parent´s decision is not in the best interest of the child the consent may be replaced by the court CHECKS AND BALANCES
→ parental responsibility → power over children is not unlimited → custody in all aspects necessarily ends at the age of 18 BUT the part of custodial power enables parent to have physical control over child´s body ends when ´the years of discretion´ is reached.
,,All the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his property“
1. Father and mother married to each other at the time of child´s birth 2. Only mother 3. Guardian 4. A Person in whose favour the court makes a residence order with respect to the child 5. Local authority or other authorised person
Common law system vs. Slovak law
Differs between three stages of development of the child: 1. Child of tender years 2. ´Gillick competent´child under 16 3. Sixteen and seventeen-year old child
→ not yet in ´the years of discretion´ → lacks the intellectual ability to understand what is gonna happen → lacks the maturity to form balanced consent WHO CONSENT? → person with parental responsibility
→ term ´Gillick competent´ was formed upon the case Gillick v. West Norfolk in 1986 →,,Altought it specifically dealt with the adolescent competence to consent to contraceptive advice and treatment, the principles established have a general apllication to all forms of medical treatment.“ → The test of ´Gillick competence´ is based on child´s understanding and intelligence "...it is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved.„ WHO CAN CONSENT? → A child who fullfiled the above mentioned criteria to be ´Gillick competent´ can give a valid and effective consent to particular treatment as well as an adult who is sui juris
→ Family Law Reform Act 1969 provides in Section 8: ,,(1) The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian.“ WHO CONSENT? → Child itself
→ Health care and services related to providing of Health Care Act 2004: ,, (1) The attending medical staff must inform about the purpose, nature, consequences and risks of provided health care, about the possibitlity to opt proposed procedures and the risks of refusal of medical care (hereinafter reffered to as "provide guidance"), unless the Act provides otherwise, a) a person to whom they provide health care, or the other person, which such person wishes to be inform b) legal representative, guardian, trustee, another natural person who has custody over the minor child, a person who has a child in substitute care, a person who has a child in foster care, a person who wishes to become a foster parent and the child is temporarily placed under his care, the prospective adoptive parent, a person who has a child placed under special regulations(…), if the person to whom the health care is provided is the minor child, the person who lacks the legal capacity or a person with limited legal capacity (hereinafter "the person incapable of giving informed consent") and in an appropriate manner the person incapable of giving informed consent.”
→ Based on the aforementioned can be assumed that in Slovak law system the person is capable of giving a valid consent to treatment upon the reachment of the age of 18. → Therefore, altought the 16-year old child is considered to be close to the legal age he is still the minor under the age of 18 (unless he acquired majority earlier by marriage), the consent to treatment is given by his parents or other persons with parental responsibility, in the light of abovementioned Act, also even in cases such as medical examination, therapy or treatment.
→ limitations: A) no parent can consent to any treatment or procedure which is unlawful B) where the child is a ward of court parental power is limited and it is necessary to obtain the prior consent of the court before the ´important´ or ´major´step is taken in the life of the child C) parents always must act in the best interest of the child D) limits to the consent which a parent can give in the case the child is old enough to understand what is involved →. The court can overrule parental consent which is not in the best interest of the child.or overrule the refusal to consent to treatment which is in the best interest of the child.
,, Parents may be free to become martyrs themselves. But it does not follow that they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make the choices for themselves.” → The court pays every respect to the family´s religious principles. But, the parent´s wishes and views will be given effect to by court only if they are in the best interest of the child and are in accordance with the child´s welfare. →,,Case law indicates a general willingness on the part of the judiciary to accept medical advice that the treatment proposed is the only means of saving a sick child, even when it means overriding religious tents of his or her parents.”
CHARTER OF RIGHTS OF CHILDREN IN HOSPITAL (1992) → is a part of Convention on the Rights of Child 1989 → sets out several problems concerning placement of the child in hospital which should be followed:
1.) Children should be admitted to hospital only if care they require cannot be equally well provided at home or on a day basis. 2.) Children in hospital shall have the right to have their parents or parent substitute with them at all times. 3.) Accommodation should be offered to all parents, and they should be helped and encouraged to stay. Parents should not need to incur additional costs or suffer loss of income. 4.) Children and parents shall have the right to be informed in a manner appropriate to age and understanding. Steps should be taken to mitigate physical or emotional stress. 5.) Children and parents have the right to informed participation in all decisions involving their health care. Every child shall be protected from unnecessary medical treatment and investigation. 6.) Children shall be cared for together with children who have the same developmental needs and shall not be admitted to adult wards. There should be no age restriction for visitors to children in hospital. 7.) Children shall have full opportunity for play, recreation and education suited to their age and condition and shall be in an environment designed, furnished, staffed and equipped to meet their needs. 8.) Children shall be cared for by staff whose training and skills enable them to respond to the physical, emotional and developmental needs of children and families. 9.) Continuity of care should be ensured by the team caring for the children. 10.) Children shall be treated with tact and understanding and their privacy shall be respected at all times.