Choose an area that you have studied. Explain the legal and ethical issues it raises and analyse whether or not the law deals with these adequately. Are there any improvements you would suggest?

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Choose an area that you have studied.  Explain the legal and ethical issues it raises and analyse whether or not the law deals with these adequately.  Are there any improvements you would suggest?

The area I have chosen to examine is that of consent to treatment, particularly in relation to children.  There are a number of reasons for this choice.  Firstly it is an area through which everyone must pass before he or she becomes legally competent to consent, thus is something everyone can relate to and at least to some extent understand the difficulties that arise from it.  Secondly while certain areas or aspects of children consenting, or rather not having the right to consent, may not prove to be contentious there are particular areas, for example that of medical research, in which it may seem questionable to allow someone other than the subject of that research to be the one to consent to it.  It raises the question of how far should children be protected, and is restricting their right to consent a suitable way of doing this, especially if other ethical considerations, such as religion, are ignored?  Finally the term child will also need to be looked at, for while it may be simple to quote a legal definition to determine who is and is not a child the application of this in reality is regrettably not so simple.

Before looking at consent in relation to children it is useful to gain a general perspective on the subject.  The principal of giving consent to treatment can be seen as important for a number of reasons.  If you look to the ideals behind medical practice, those such as beneficence, non-malfeasance and in particular respect for patients autonomy, the patient’s right to consent, and conversely to refuse treatment, goes a long way to support those principals, especially that of autonomy.  It is also important from the point of view of the medical establishment and the Doctors who have to perform the surgery to which the patients have, on the whole, consented.  Without consent the Doctor will be committing a trespass to the person, in other words a battery (non-consensual touching) for which they can be held to account under both the criminal and tort systems.  It acts to a certain degree as a safe guard for individuals and medical professionals.  Few like to think that they can be forced to do or have something done to them, thus the requirement for a valid consent will placate the majority, their autonomy and self determination as to what happens to their body is observed while at the same time saving the medical profession and health authorities from expensive law suits.

It is evident from the above that obtaining patients consent is of crucial importance for all concerned however consent can take many forms, express or implied for example, but the most important factor that arises from these is the idea or perhaps rather the doctrine of informed consent.  This doctrine is premised on the belief that patients have the right to receive sufficient information to make meaningful choices among the options doctors propose.  It is suggested in a government publication on consent that sufficient information would constitute information that would ensure patients understood the nature, consequences and any substantial risks of the treatment proposed so that they are able to take a decision based on that information.  The possible implications of this statement or doctrine for children is quite evident, an understanding of the information presented to individuals is required for them to be able to consent and as will be discussed below this can prove highly problematic in relation to minors.  An issue arising from this is the notion of competence, while the medical profession can provide all the relevant information it will not lead to a valid consent unless the patient has sufficient understanding, variously described as mental capacity or mental competence to make the decision.  The test for capacity that has been favoured by the law commission is termed the ‘functional’ approach.  Here those assessing the patient ask whether the individual is able at the time the a particular decision has to be made to understand it’s nature and effects.  As Lord Donaldson MR put it in the case of Re T

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“What matters is that the Doctors should consider whether at the time he had the capacity which was commensurate with the gravity of that decision which he purported to make.  The more serious the decision the greater the capacity”

A most adequate example of this can be seen in the case of Re C where an elderly man who was diagnosed as suffering from paranoid schizophrenia succeeded in obtaining an injunction restraining the health authorities from amputating his foot then or any time in the future. Thorpe J found that while Mr C’s general capacity was impaired by schizophrenia, ...

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