Medical Treatment and Expression of the Consent of the Elderly Not Able to Consent: A Comparative Analysis of the Case Law in the Countries of the Council of Europe (original) (raw)
Related papers
CONSENT ISSUE IN MEDICAL INTERVENTIONS APPLIED TO PATIENTS WHO DO NOT HAVE THE CAPACITY TO ACT
Life, physical integrity and health are values protected within the scope of personality right. For this reason, medical interventions applied on these values constitute a tort and/or crime unless there is a reason preventing illegality. In medical interventions, this reason often appears as the patient's consent. However, it is not possible to give consent for patients who permanently or temporarily lack the capacity of judgement. In this case, can medical intervention be applied with the consent of the patient's relative or legal representative? If so, what should the representative take into account when giving consent or what should be done if the legal representative refuses to give consent even though medical intervention is necessary and urgent? On the other hand, since consenting to medical intervention is a strictly personal right, it is argued that this right cannot be used through a representative. Despite this, in Turkish Law, there are provisions that still require the consent of the legal representative in medical interventions applied to underage or under guardianship patients, even though they have the capacity of judgement. These provisions cause problems in practice. And in German law, a paragraph ( §1358) added to the German Civil Code allowed spouses to represent each other in medical interventions, under certain conditions, for a certain
Urkevich T.I., Lytvynenko A.A., The Doctrine of Patient’s Informed Consent in the Legislation and Jurisprudence of Czech Republic, Austria and the Latvian Republic, 29 (1) Medicne Pravo (1/2022), p.p. 49-94 (2022)
alongside with aged and well-developed French or Belgian medical jurisprudence, whereas the Latvian medical jurisprudence, despite having a rich history of emergence since the 1920s, has developed a solid body of case law in regard with patient's rights relatively recently.
Informed consent in medical law in the Romanian legal system
This paper aims to analyse the principle of consent in the medical act from a comparative law perspective. While the introduction gives a brief presentation of the definition of consent from the perspective of legal doctrine, the content of the paper analyses some legislative landmarks in the Romanian legal system, as well as in the French and Spanish legal systems. Consent is one of the basic principles of modern medical bioethics and an essential element of the validity of the medical contract, ensuring respect for human dignity and protection of the patient's bodily integrity. While Romanian law is based more on the idea of information, Spanish law analyses consent from the point of view of a personalist right, including it in the short list of personal rights enshrined in Law 1/1982 on the protection of honour, image and privacy. French law, on the other hand, has a long history of case law regulating consent in medical acts, with the Teysier and Mercier cases being worth mentioning.
Patient Safety in Surgery
Background: Respect for patient autonomy and the requirement of informed consent is an essential basic patient right. It is constituted through international conventions and implemented in health law in Norway and most other countries. Healthcare without informed consent is only allowed under specific exceptions, which requires a record in the patient charts. In this study, we investigated how surgeons recorded decisions in situations where the elderly patient's ability to provide a valid informed consent was questionable or clearly missing. Method: We investigated all medical records of patients admitted to surgical departments in a Norwegian large academic emergency hospital over a period of 38 days (approximately 5000 patients). We selected records of patients above the age of 70 (570 patients) and searched through these 570 medical records for any noted clear indications of inability to consent such as "do not understand", "confused" etc. (102 patients). We read through all the medical records on these 102 patients noting any recordings on lack of informed consent, any recordings on reasoning and process hereto. We also took note whether there were clear indications on the use of coercion. Results: None of the 102 included patients´charts contained legally valid recorded assessments (for example related to the patients´competence to consent) when patients without the ability to consent were admitted and provided healthcare. Some charts contained records that the patient resisted treatment, thus indicating treatment with coercion. In these situations, we did not find any documentation related to legal requirements that regulate the use of coercion. Discussion and conclusion: We found a substantial lack of compliance with the legal requirements that apply when obtaining valid informed consent. There are many possible reasons for this: Lack of knowledge of the legal requirements, disagreement about the rules, or that it is simply not possible to comply with the extensive formal and material legal requirements in clinical practice. The results do not point out whether the appropriate measures are amending the law, educating and requiring more compliance from surgeons, or both.
A comparative assessment of minors’ competence to consent to treatment in Polish and English law
Progress in Health Sciences, 2015
The publication concerns the problem of minors' consent in regard to health services. The authors have provided legal solutions adopted in the UK and Poland. The British case law presented in the first part of the article provides that minors have the opportunity to decide on issues relevant to their own health. The ruling which made a breakthrough in automatic treatment of all children (0-16) in the same way was the Gillick case. Since then the test of actual competence has depended on whether the child is able to make a reasonable assessment of the advantages and disadvantages of the proposed treatment and the type of medical intervention, not on age. The British Medical Association has developed manuals to facilitate proceedings of assessing the ability by the physicians. In turn, the Polish legislator in relation to the consent of minors under 16 to treatment introduces only one criterion: the age. Children under 16 years of age, even if they are competent, are not asked for permission to violate their physical integrity. Legal representatives (in the case of medical examination-actual custodians) are solely entitled to express the consent. In turn, minors above the age of 16 are entitled to consent together with their legal representatives (the actual custodians). In the case of dual consent, in principle, both entities should actually be capable of expressing it. Reading of the provisions of Polish medical law, however, leads to the conclusion that, in fact, the competence of parents is the most important. In the case of a minor patient's (over 16 years of age) incompetence, consent is made only by his legal representative. In contrast, in the case of a minor's opposition, the doctor does not examine his actual competence, only whether the patient is acting with sufficient discernment and refers the matter to the guardianship court.
Journal of Alzheimer's disease : JAD, 2018
According to the projections of the statistical office of the European Union, Eurostat, nearly one third of EU citizens will be at least 65 in 2060. The U.S. population age 65 and older continues to increase and is projected to nearly double from 48 million to 88 million by 2050. Elderly people are especially exposed to neurodegenerative diseases (NDs). The most common ND is Alzheimer's disease (AD), a chronic and progressive disorder with a variety of pathological changes within neuronal tissue, which begin even 10-15 years before the onset of cognitive impairment symptoms. AD is perceived as a disease continuum and considered to include three basic phases: preclinical (asymptomatic) stage, mild cognitive impairment (MCI), and dementia due to AD. A very important issue, from medical and legal perspectives, is the NDs patient's consent to medical procedures, including diagnostic procedures, such as lumber puncture. NDs patients are not always able to express their consent an...
Who Decides?: Consent, Capacity and Medical Treatment
2021
It is a fundamental ethical and legal requirement that consent should be <br> obtained before providing medical treatment. Despite this, basic legal <br> questions arise regarding consent for those who lack decision-making capacity to consent to treatment. Many of these questions will be addressed when the Assisted Decision-Making (Capacity) Act 2015 (the 2015 Act) comes fully into force. This chapter identifies the impact of the 2015 Act on consent to treatment; the questions which will remain and the matters which still need <br> to be addressed to provide clarity. First, however, we look at the current Irish <br> law (the position prior to the 2015 Act coming into force).
Medical and legal aspects of elderly patients with dementia
Romanian Journal of Legal Medicine, 2014
The past 50 years is witness to a continuous process of demographic transition that affecting both developed countries and developing. World's population is aging and ageing itself is a triumph of our times, a reflection of improving overall health, hygiene and socioeconomic development. On the other hand, the alarming rise in the percentage of elderly in the total population has generated problems with consequences reflected national and individual level. Alzheimer disease and other dementias represent a major public health burden associated with aging and will generate important social, economic and medical problems. For those patients it is necessary to assure the equitable access to medical care and treatment, the respect of patient's dignity, the support in struggling against the stigmatization, protection against any abuse. Age is the most frequently mentioned reason for discrimination in Europe and applies especially to old age. The existence of abuse at the elderly, especially to those very dependent, like patients with dementia, is well documented being a major concern and a subject for action in the EU.
OBM Geriatrics, 2019
The history surrounding the notion of 'informed consent' is provided in the interest of setting a framework for the emergence of an ethics of aged care. Informed consent negligence is seen as a breach of duty involving potential litigation through the legal concept of 'failure to warn'. Respect for the autonomy of older persons is highlighted as a cornerstone of care by medical professionals and family members. There remains the challenge, however, of caring for older people who do not have full decision-making capacity. Research involving older people creates a range of ethical issues that warrants the use of best practice principles that respect the autonomy, integrity, dignity and safety of older participants. The use of restraints as part of aged care is demonstrated to have implications for infringements of human rights. While promoting the importance between communication and ethics of care, a case is made for the adoption of a person-centred approach that acknowledges both the autonomy and personhood of older people. In relation to the quality of aged care and safety, the message for all caregivers is to ensure that all decisions large or small incorporate a genuine mix of ethical reflection, avoidance of unnecessary risks and prudent judgement that leads to the most beneficial course of action.