Bits of law…ALEX, POPPY, RAJNI, JAKE

Types of law…

3 sources of law?

Common-law ‘judge-made law’

Statute- law ‘parliament-made’ law

European law esp. European Convention on Human Rights

Common law

AdvantagesSlow changesFits with other lawSensitive issues

considered outside political arena

DisadvantagesPiece-meal - cases

must arise - no “grand scheme”

ConservativeRetrospectiveNo community

consultationUncertain – standard

like “reasonable”

Advantages Paramount - overrides

common law Clear and conclusive Prospective Carefully planned -

systematic Public – participatory Reflects community

attitudes

Disadvantages InflexibleDifficult to changeHard for rapid

change areas like biotechnology

Statute law

Advantages Embeds ethical

principles Avoids conflict

between domestic and international law

Enforcement of individual human rights

Better policy outcomes

DisadvantagesToo much power

to judgesOnly imposed

against government and public authorities

Subject to Parliamentary sovereignty

European law

Capacity and Consent…

Do they have capacity?Mental Capacity Act (2005)

Understanding of information

Retention of information

Ability to use/weigh information as part of the decision-making process

Ability to communicate their decision

Is their consent valid?Consent

For consent to be valid “it must be given voluntarily by an appropriately informed person (the patient or where relevant someone with parental responsibility for a patient under 18) who has the capacity to consent to the intervention in question”

Capacity Information Decision-making Voluntariness

Who can consent?

For an adult with capacity? Only the adult themselves

For minors? 16-17 year olds

Capacity assumed from age 16

Gillick-competent under 16 year olds

A Person/Local authority with Parental Responsibility

A Court

Children Act (1989)Case-law RulingsHTTPS://WWW.YOUTUBE.COM/WATCH?V=QH2SWSVRRMO

The welfare of the child should be the paramount concern.

Someone with parental responsibility can consent to/refuse treatment when the child is not deemed competent. Only one parent (or the court) needs to consent.

A competent child’s refusal of treatment can be overruled by the parent/guardian/court.

The Children Act (1989) (all you need to know)

When the clinician assesses an under 16 child’s competency, they can justify

This is generally referred to as Gillick competency and was established by a specific legal case.

Originally this term applied only to contraception, but is now used for child competency in general.

Gillick Competency

The same case that established Gillick competency also established the Fraser guidelines.

The are mainly applied when a doctor gives an under-16 contraception, but also tend to be applied to competency in general.

A doctor could proceed to give advice and treatment provided he is satisfied in the following criteria…

Fraser Guidelines

Fraser Guidelines

1. That the girl (although under 16 years of age) will understand his advice;

2. That he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice;

3. That she is very likely to begin or to continue having sexual intercourse with or without contraceptive treatment;

4. That unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer;

5. That her best interests require him to give the contraceptive advice, treatment or both without the parental consent.”

Human Fertilisation & Embryology Act 1990 (2008)

Criteria: Condition of the affected child should be severe or life threatening to justify

Pre-implantation Genetic Diagnosis Embryos conceived should be themselves at risk from condition of existing

child All other possibilities of treatment and sources of tissue should have been

done Intention should be to take only cord blood for purposes of treatment, and

not other tissues or organs Embryos should not be genetically modified to provide a tissue match

Case Study on Saviour Siblings – Zain HashmiThree year old boy suffering from beta-thalassemia. Death without bone marrow transplant.

a) Condition of the affected child should be severe or life threatening to justify PGD

Both parents were beta-thalassemia carriers.

a) Embryos conceived should be themselves at risk from condition of existing child

Regular blood transfusions a) All other possibilities of treatment and sources of tissue should have been done

Pre-implantation genetic diagnosis (PGD) to select embryo free of disease AND conduct tissue typing to identify perfect blood match so that umbilical cord blood can be used to save Zain’s life

a) Intention should be to take only cord blood for purposes of treatment, and not other tissues or organs

- a) Embryos should not be genetically modified to provide a tissue match

Justified!

Questions…

What 4 things are required for capacity to be present?

1. Understanding of information

2. Retention of information

3. Ability to use/weigh information as part of the decision-making process

4. Ability to communicate their decision

What 4 things are required for valid consent?

1. Capacity

2. Information

3. Decision-making

4. Voluntariness

A 14 year old girl comes to you, asking to go on the pill. What 5 things should you be confident of before giving her contraceptive treatment?

1. She will understand your advice2. You cannot persuade her to inform her parents or to allow you to inform the

parents3. She is very likely to have sexual intercourse with or without contraceptive

treatment4. Unless she receives contraceptive advice or treatment her physical or mental

health are likely to suffer5. It is in her best interests that you give contraceptive treatment without her

parent’s knowledge