Medical Law: Capacity and Consent
Medical Law Coursework Common law has protected the personal and bodily interests of the individual through the law of trespass. When a patient undergoes treatment, it is the provision of consent that prevents the doctor from being held liable for a battery or for negligence. The essential elements to a valid consent can be summed up as follows: a) the patient must have sufficient understanding, otherwise known as the mental capacity to make the decision, b) the patient must consent (or refuse) the treatment of his own free will, with no duress or undue influence, and c) the patient must have been given sufficient information about the proposed treatment.1 patient is capable of making such decisions, his consent or refusal will be valid. The case of Re C held that capacity was the comprehending and retaining of treatment information, believing this information and weighing the information in the balance and arriving at a choice. The MCA now provides a fourth requirement that the patient must communicate his thoughts. Adults are presumed to have capacity to consent to treatment from the age of 18. For competent adults, the power to consent to treatment includes the right to refuse treatment. This right is premised on the right of each individual to autonomy and personal integrity. In the words of Justice Cardozo: "Every human being of adult years and sound mind has a right
'The English courts only pretend to respect patient autonomy. In any difficult case, the judges prefer the doctors' judgement of the patient's best interests.' Discuss.
'The English courts only pretend to respect patient autonomy. In any difficult case, the judges prefer the doctors' judgement of the patient's best interests.' Discuss. Self governance or autonomy fundamentally depends on capacity to make ones own decisions. Mentally competent people are said to enjoy the right to autonomy, not least in their own health and treatment of illness. When a conflict of interest arises between how someone would have them self treated and how they have been treated, the courts have been called upon, either to stop a treatment proceeding or provide compensation when it has been seen as unlawful. In this case, when performed without the correct consent required. The law in the past has almost always sided with medical opinion. The 'doctor knows best' idea has been part of society for a long time. Recent cases have proven this is not always correct. We will examine how far the courts have actually progressed in maintaining autonomy and whether it is in their 'best interests' to do so. The tort of battery is uninvited and un-consented physical contact not seen as an everyday occurrence. A doctor will commit battery and possibly the crime of assault if a patient consents to a different procedure they receive. The defendant is then liable to all damages which flow from this invasion even if a specific injury has not been established.1 In negligence, the
The use of the Abortion Act in relation to the abortion pill
There is a long standing debate surrounding the ethics of both abortion and assisted conception. The moral reprehensibility of both, although touched on, are outside the ambit of this essay. The purpose of this essay is to assess the current law. Under S.1 (a) of the Abortion Act 1967 an abortion can be carried out up to 24 weeks on the grounds that carrying the pregnancy to term would damage the physical or mental health of the woman. As mifepristone can only by used up to 8 weeks of pregnancy (Grubb:1961:669), and deformities or disabilities in the foetus cannot be recognised at such an early stage, it is S.1 (a) of the Act that the use of mifepristone may be authorized. Thus, the essay is focused on S.1 (a) and whether the full application of the section in relation to the use of mifepristone is overprotective. Throughout the essay, it is presumed that a foetus under 24 weeks is not viable and that whilst it is accepted that a foetus does have some moral status it is not exactly the same as a person (Dworking:as cited in Jackson:2010:662) thus the ethical debate around the life and value of a foetus shall be left untouched. I also accept that assisted conception techniques are a valid medical procedure that should carry on. The current law on assisted conception is governed by the HFEA 1990 under which clinics are authorized to carry out assisted conception. It is S.13 (5)
Explain and analyse the changes made to abortion law by The Human Fertilisation and Embryology Act 1990
Explain and analyse the changes made to abortion law by The Human Fertilisation and Embryology Act 1990 To begin with, it is important to consider, the law in this area was first considered to have been effectively codified under the Offences Against the Person Act ('OAPA') 1861. This is because the OAPA 1861 provided abortion (regardless of reasons), through the unlawful administration "of any poison or other noxious substance", was considered criminal under section 58 of the Act punishable with a term of imprisonment ranging from three years to life imprisonment. It is further supplemented by section 59 which prohibited the supply or procurement of poison or instruments to commit a criminal abortion under section 58. However, despite the passing of time and changing attitudes within our society, the OAPA 1861 is still in force and so the statutes that have followed since (including the Human Fertilisation and Embryology Act ('HFEA') 1990), therefore, sought to provide legal exceptions where abortions can be carried out without fear of reprisals and their impact can be judged by these exceptions. Therefore, with this in mind, the Infant Life (Preservation) Act ('IL(P)A') 1929 looked to supply the first exceptions in this area as it amended the OAPA 1861 so that an abortion would not be considered a crime where it was carried out to prolong the health and life of the
Euthanasia Ethics: A Better way to die
Ibrahim Ahmed Professor Michael Guth HCA 311-Health Economics Euthanasia Ethics: A Better way to die There are numerous controversial issues that currently affect the evolving field of psychology. Unsolved issues on human experimentation, abortion, genetic testing, and animal rights are a few examples of themes that arouse conflict and contention. Euthanasia and Physician-Assisted suicide is yet another controversial issue that has particular relevance to the field of psychology because of the apparent moral and ethical dilemmas involved. The American Heritage Dictionary defines euthanasia as "the act of killing an individual for reasons considered being merciful". Killing in this case is a physical action where one individual actively kills another. The word "euthanasia" comes from the Greek EU; "good" and THANATOS; "death" or "good death". Doctor assisted-suicide can be considered auto-Euthanasia. The Doctor provides the means for a patient to take their own life painlessly but does not actively or physically help that person die. Euthanasia, by definition a happy death, implies an easy or painless death. On one side of the argument, Euthanasia would appear to be contradicting the Hippocratic Oath, which forbids inducing death, even if it is requested by the patient. On the contrary, medicine could be referred to as the practice that not only prevents death, but
Within the context of professional ethics, observing the principle of confidentiality means keeping information given by or about an individual in the course of a professional relationship secure and secret from others. In Hunter v Mann
Within the context of professional ethics, observing the principle of confidentiality means keeping information given by or about an individual in the course of a professional relationship secure and secret from others. In Hunter v Mann1, Boreham J considered the question of whether a doctor owed an obligation of confidence to his patient and concluded that: 'In common with other professional men...the doctor is under a duty not to disclose [voluntarily], without the consent of his patient, information which he, the doctor, has gained in his professional capacity.' There is a public interest in health professionals maintaining patient confidentiality - this encourages patients to fully divulge relevant information so that the healthcare professional can make a proper assessment of the patient's condition. On the other hand there may, occasionally, be circumstances where the interest in maintaining confidentiality is outweighed in the public interest. English courts have retained great flexibility in interpreting the scope of the doctor's obligation of confidence. The courts balance the public interests favouring confidentiality against those favouring disclosure in the particular circumstances of each case. In X v Y2, a Health Authority sought an injunction to prevent a national newspaper publishing the names of two practising doctors who were receiving treatment for AIDS.
The Ethics of Euthanasia. Cases from around the World and India.
EUTHANASIA- The “Right” to Die ABSTRACT Euthanasia is one of those Taboo topics that individuals try to distance themselves from due to the fact that it’s a sensitive issue. Most individuals try to take a politically correct stand without evaluating the impact it has on the aggrieved party’s life. Euthanasia in itself may seem a simple issue at the first instance, but by probing deep into the issue we are made to ponder a lot about not only its ethical aspects but also the stakes involved in exercising Euthanasia as a fundamental right of an individual. The dilemma in this issue is a lot more complicated if we were to compare it to other conventional ethical dilemmas because both the stands seem morally right, but there’s a legal perspective which opposes one school of thought and supports the other. Is an individual allowed to determine his death if survival is more of a formality? If so what is the basis of qualifying a case to be a suitable contender for euthanasia? Is the judiciary ignoring this since Euthanasia is an issue faced by a minority? SOME FAMOUS VOICES ON EUTHNASIA: . Mr. Ravi B Naik, former High Court Judge and Senior Advocate: (deccanherald.com) “When it is not possible for man to give life, who is he to take it away? We should leave death in the hands of God who gave life. There is no law that allows killing by force till a man dies
In our view, therefore, medical law is a subset of human rights law. (Kennedy & Grubb Medical Law (3rd ed.) Discuss.
"In our view, therefore, medical law is a subset of human rights law." (Kennedy & Grubb Medical Law (3rd ed.) Butterworths 2000 p.3) The rights and freedoms guaranteed by the European Convention on Human Rights (ECHR) became directly enforceable in the courts in the United Kingdom through the Human Rights Act 1998 (HRA).1 Section 1 of the HRA fully incorporates the rights set out under the ECHR. Section 2 requires English courts to consider convention rights when making a decision regarding an individual's human rights.2 The role of the European Court of Human Rights (ECtHR) is a positive duty defined under Article 1, to 'secure to everyone within the jurisdiction the rights and freedoms defined in the Convention'.3 There are many examples of the complex relationship between English medical law and the ECHR but the focus will be on a select few in this assignment. In the relationship between domestic medical law and European human rights, there are particular areas where English law stands alone with no influence from human rights. Abortion is one of the areas. The Abortion Act 1967 states abortion is lawful if performed by a registered doctor, in circumstances where two doctors agree and is performed in good faith.4 Abortion is permitted until the 24th week of pregnancy on grounds where the pregnancy may lead to physical or mental injury to the pregnant women or other
Problems with PPACA
Problems with PPACA: Higher Costs PPACA has touted new benefits without measures to cut cost.1 One should know that in America there are already federal laws and programs to cover the elderly (Medicare), the poor (Medicaid), and uninsured children (CHIPs), In addition there is basically free or low cost care to anyone who needs it and it is available if one looks for it. Examples include: Shriner’s hospitals, free clinics, and providers who do pro bono work. In case that wasn’t enough, there are also laws in place that ban practices of charging more to people with pre-existing conditions in employer-based health insurance. The 60% of Americans who get their healthcare insurance from their employer may actually be hurt by PPACA. All one needs to do is make the connection that minimum standards for health insurance and broader access to subsidized healthcare will drive taxes up.4 But for those who have a hard time making the connection, the literature supports costs 3 times higher than initially stated by President Obama, and an additional $118 billion through 2023.3 In order to drive home the point of higher costs, look at an example used by Supreme Court Justice Samuel Alito. Justice Alito spoke on the hypothetical typical healthy 27 year old worker who on average consumes less than $900 annually on healthcare services. Under the PPACA that same healthy 27 year
"The rights and interests of parties other than the patient should be better accounted for" Discuss, with reference to the law governing confidentiality and the treatment of incompetent patients.
Medical Law Coursework 1 "The Principle of respect for patient autonomy has attained too much importance in English medical law; the rights and interests of parties other than the patient should be better accounted for." Discuss, with reference to the law governing confidentiality and the treatment of incompetent patients. The central issue of this essay appears to be the concept of consent and thus I must examine the different ways of giving your consent in differing situations. I will start by giving a brief outline on the conditions for competent adults to give consent to treatment and analyse the extent to which this group makes an autonomous decision. I will then go on to analyse the law surrounding incompetent adults' means of consenting to treatment as this illustrates the approach taken by the courts when an individual is incapable of consenting. This will have covered giving consent with regards to treatment but then I must look at the area of patient information and how this information is released, is it a completely autonomous decision on behalf of the patient? I will conclude that in fact the interests of other parties other than the patient are accounted for in certain situations and that the law appears to be edging towards giving these groups more recognition. The notion of consent represents the ethical principle that each person has a right to