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Medical Law coursework - Essay Example

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Q.1} "At present, the law in England permits those under 18 to have their medical decisions respected if, but only if, they know what is good for them and accept the treatment that is proposed. Such a position is illogical and unjust and may have wider implications for the way in which children are viewed in our society, in that it suggests that children are in some way less entitled to full respect as members of our society by virtue of their status."
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Medical Law coursework

Download file to see previous pages... The right of younger children to provide independent consent is proportionate to their competence, but a child's age alone is clearly an unreliable predictor of his or her competence to make decisions. A judgment in the High Court in 1983 laid down criteria for establishing whether a child, irrespective of age, had the capacity to provide valid consent to treatment in specified circumstances. Two years later these criteria were approved in the House of Lords and became widely acknowledged as the "Gillick test," after the name of a mother who had challenged health service guidance that would have allowed her daughters aged under 16 to receive confidential contraceptive advice without her knowledge.
As long ago as 1969 the Family Law Reform Act declared that consent to medical treatment given by a minor of sixteen "shall be as effective as it would be if he were of full age," (1969) and in such cases parental consent need not be obtained. The empowered children to make informed decisions based on their competence and capacity.
This view of children's legal rights have been strengthened in Gillick v. West Norfolk & Wisbech Area Health Authority (1985) where House of Lords ruling declared that "parental responsibility diminishes as child acquires sufficient understanding to make his own decisions" and that "at common Law a child of sufficient intelligence and understanding could consent to treatment, notwithstanding the absence of parents consent." This judgment clearly and expressly declared that a doctor might provide contraception to minor under sixteen with or without her parents consent. The law did not recognise any rule of absolute parental authority until a fixed age: parental rights were recognised by the law only as long as they were needed for the protection of the child and such rights yielded to the child's right to make his own decisions when he reached a sufficient understanding and intelligence to be capable of making up his own mind. This has to be an exercise backed by sound clinical judgment taking into consideration what is best for the patients health. This was further supported by Health's Guidelines for Ethics Committee (1991) which holds that parental consent cannot override a competent child's refusal of consent. This was also supported in 1984 by the British Medical Association's Philosophy and Practice of Medical Ethics (1988) which advises that physicians may provide contraceptive to mentally mature women under sixteen without parental notification or consent if that clinically serves the patients best interest. (Kessel, 1993 )
Here the conflict is between autonomy and dependency, which characterizes the legal position of the minors. This lays emphasis on the rights to decide on the matters of sexuality, reproduction, partnership, marriage and parenthood which are influenced and limited by parental rights and also affected by state regulation. This leads to the more pertinent question of the social rights of minors around the issue of sex education, as one of the most controversial subjects investigated. ...Download file to see next pagesRead More
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Medical Law
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