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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?

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Introduction

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. ...read more.

Middle

It would be a form of practising defensive medicine, not operating for fear of the repercussions, thus the sacrifice of a certain degree of autonomy is always going to be required. The important question now is where and how children fit into this? The most useful starting point is to identify who a child is. Under English Law a child or 'minor' is a person who has been born but is under the age of eighteen11 and as such they are still subject to the jurisdiction of the courts. This has however, been mitigated to a certain extent by the Family Law Reform Act 1969, allowing minors who have obtained the age of sixteen to consent to surgical, medical or dental treatment as if they were of full age12. But what may seem unjust here is one day an individual is perceived to be incompetent and unable to consent however the very next day, with it being unlikely a change in mental maturity has occurred, they obtain the appropriate age, as such their autonomy is respected. If the law were to maintain this rigidly it would in my opinion be preposterous, placing a blanket age limit on the ability to consent. This has not however been the case and in situations where minors below the age of sixteen have requested treatment against their parents wishes it has on occasions been granted. The leading case in this field is that of Gillick v West Norfolk and Wisbech Health authority13 in which Mrs Gillick sort a declaration to prevent the health services prescribing contraceptives to minors under the age of sixteen. What the law lords concluded was that there was no fixed age of consent and as such when a child achieved a sufficient understanding and intelligence to enable him ...read more.

Conclusion

In conclusion it is clear that there are parallels between adults and minors consenting to treatment. It can be generally summarised by saying that to provide a valid consent the law requires a patient to be appropriately informed, posses a particular mental capacity and be free from duress. These would seem prudent and reasonable steps, safeguarding the health authorities and individuals from consent born out of temporary mental confusion. Not only this but consent can arise from other sources such as necessity in emergencies, aiding the efficient and effective running of the health service. However what the law would appear to lack is the ability to provide for minors to refuse treatment. While certain extra safeguards would need to be implemented to prevent undue influence from family members or any other source, as Sir Stephen Brown suggests in Re L, what would appear to be a total reluctance by the courts to accept minors right to refuse is unjustified. If a minor satisfies the same criteria an adult would be asked to fulfil, why should they be denied the ability of self-determination? One possible answer lies in the fact that when consenting to treatment it acts to support a Doctors opinion i.e. what you are consenting to is best for you. But, when it comes to a minor refusing treatment it is likely to go against the opinion of their elders, and therefore not seen as best for you as you cannot yet decide what is best for you. This seems wholly unacceptable and requires the law to catch up with the ability and potential of minors today. All that is necessary is to develop the concept of sufficient mental capacity to that of refusal to be treated, by perhaps incorporating a requirement to prove they are free from prejudice, not simple but necessary. ...read more.

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