"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.

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05/08/07                                                                              Candidate No. - 13891

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 self-determination and is entitled to have their autonomy respected. As Justice Cardozo proclaimed in his classic statement:

“Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.

A competent adult is generally entitled to reject some or all treatment even if this entails risks as serious as death. The classic case where the patient refuses treatment and might then die due to this refusal is the case of Jehovah Witnesses. An illustration of this is the case of Malette v. Shuhman where a young woman was rushed into hospital unconscious carrying a card stating that she was a Jehovah Witness refusing blood transfusions. The doctor in casualty then despite this proceeded to give the woman a blood transfusion and was thus held to have committed a battery as the woman did not consent to the treatment. This is a clear illustration of the idea that the patient’s wishes must be adhered to and thus respect held for patient autonomy. This seems simple enough but the courts have not been too willing to find doctors guilty of battery so have introduced other measures to get round the idea of express consent. It has been established that there are four components of legally valid consent; voluntary, based on adequate information, given by a person with mental capacity to consent and not contrary to public policy. Two of these elements require more investigation, those of mental capacity and public policy. The latter means that society chooses to set limits on respect for autonomy. Corbett v. Corbett was a case where trans-sexual surgery was tacitly approved due to the implementation of the Prohibition of Female Circumcision Act 1985, thus society was allowing the patient an autonomous decision.

So far I have only considered consent for the competent adult, but how about the competent child? The law on children depends on the age of the child. The law is generally protective of children and historically leaves decisions on procedures up to proxies. Under the current law there are generally three categories of children, sixteen to eighteen year olds, competent or ‘mature’ minor under the age of sixteen and the ‘immature’ minors under sixteen. None of the categories have the power to refuse treatment and neither do their proxies. Sixteen to eighteen year olds have the power to consent to treatment under the Family Law Reform Act 1969 section 8 as long as they meet the same competency criteria as adults as laid down in Re C (adult: refusal of treatment). ‘Mature’ minors under the age of sixteen have the power to consent to treatments under the conditions stated in Gillick v W. Norfolk and Wisbech A.H.A.. Lord Scarman’s test states that a child is competent when they have “sufficient understanding and intelligence to enable him or her to understand fully what is proposed.” If the child fails this test then they fall into the ‘immature’ minor category. ‘Immature’ minors under the age of sixteen have no powers to consent and only a person with parental responsibility or the courts can consent to any treatment on their behalf. This clearly shows how the courts have been increasingly in favour of children with understanding and the ability to make a rational decision to be able to make autonomous decisions. Even though autonomous decisions are encouraged there is still the case where parents or the courts can consent on behalf of the child thus removing the child’s autonomy.

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Consent by the mentally incapable raises many issues and problems for the law. The first paragraph of the 1971 United Nations Declaration on Rights of Mentally Retarded Persons reads:

“The mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings.”

The law does not allow incompetent adults to consent to or withdraw from medical procedures, nor are any other people allowed to consent for the incompetent. The courts issue a declaratory judgement as to whether the proposed treatment is lawful or not and the doctors must comply with this judgement. ...

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