Transcript THE RIGHTS OF HOSPITALIZED CHILDREN

THE RIGHTS OF HOSPITALIZED
CHILDREN
KRISTINA KOCICOVA
CONSENT TO TREATMENT
→ adults (sui juris) vs. Children (lack the
capacity to give a valid consent, non-age)
 → the attending physician must obtain valid
consent to treatment otherwise he commits tort
and crime

1.) THE NEED FOR CONSENT
→ before any treatment the valid consent is
needed to be given by the patient, CHILDREN
ARE NOT EXEPTION
 BUT
 As they are not able to give such consent there
must be someone who gives a consent instead
 → 3 situations may appear:

→ a) Gillick competent child (common law
system)
 → b) Child unable to give a valid consent (lack
of intellectual ability to understand and/or lack of
maturity to for a balanced judgement)
 → c) Competent child who refuses to consent
 b + c → substitute consent of parents, person with
parental responsibility, court
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2.) THE ROLE OF PARENTAL CONSENT VS. COURT
AND DOCTORS
→ the duty of doctors is to provide the best care
recognised as appropriate in certain case
 → the role of parents: to give/ withhold the
consent in the best interest of the child
 → if the parent´s decision is not in the best
interest of the child the consent may be replaced
by the court
 CHECKS AND BALANCES

3.) WHO CAN CONSENT INSTEAD OF THE CHILD?
→ parental responsibility → power over children
is not unlimited → custody in all aspects
necessarily ends at the age of 18
 BUT
 the part of custodial power enables parent to have
physical control over child´s body ends when
´the years of discretion´ is reached.

PARENTAL RESPONSIBILITY ACCORDING TO THE
CHILDREN ACT 1989

,,All the rights, duties, powers, responsibilities
and authority which by law a parent has in
relation to the child and his property“
THE ACT PROVIDES THAT FOLLOWING PERSONS HAVE
PARENTAL RESPONSIBILITY, THUS CAN CONSENT TO
MEDICAL TREATMENT OF THE CHILD:
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1. Father and mother married to each other at the
time of child´s birth
2. Only mother
3. Guardian
4. A Person in whose favour the court makes
a residence order with respect to the child
5. Local authority or other authorised person
4.) CHILD´S OWN CONSENT
-COMPARISON-
 Common
law system vs. Slovak law
COMMON LAW

Differs between three stages of development
of the child:
1. Child of tender years
 2. ´Gillick competent´child under 16
 3. Sixteen and seventeen-year old child

CHILD OF TENDER YEARS
→ not yet in ´the years of discretion´
 → lacks the intellectual ability to understand
what is gonna happen
 → lacks the maturity to form balanced consent
 WHO CONSENT?
 → person with parental responsibility

´GILLICK COMPETENT´ CHILD UNDER 16
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→ term ´Gillick competent´ was formed upon the case Gillick v. West
Norfolk in 1986
→,,Altought it specifically dealt with the adolescent competence to consent
to contraceptive advice and treatment, the principles established have a
general apllication to all forms of medical treatment.“
→ The test of ´Gillick competence´ is based on child´s understanding and
intelligence
"...it is not enough that she should understand the nature of the advice
which is being given: she must also have a sufficient maturity to understand
what is involved.„
 WHO CAN CONSENT?
 → A child who fullfiled the above mentioned criteria to be ´Gillick
competent´ can give a valid and effective consent to particular treatment as
well as an adult who is sui juris
SIXTEEN AND SEVENTEEN-YEAR OLD CHILD

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→ Family Law Reform Act 1969 provides in
Section 8:
,,(1) The consent of a minor who has attained the age of sixteen
years to any surgical, medical or dental treatment which, in absence
of consent, would constitute a trespass to his person, shall be as
effective as it would be if he were of full age; and where a minor has
by virtue of this section given an effective consent to any treatment it
shall not be necessary to obtain any consent for it from his parent or
guardian.“
 WHO CONSENT?
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→ Child itself
SLOVAK LAW
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→ Health care and services related to providing of Health Care Act
2004:
,, (1) The attending medical staff must inform about the purpose, nature, consequences
and risks of provided health care, about the possibitlity to opt proposed procedures and
the risks of refusal of medical care (hereinafter reffered to as "provide guidance"), unless
the Act provides otherwise,
a) a person to whom they provide health care, or the other person, which such person
wishes to be inform
b) legal representative, guardian, trustee, another natural person who has custody over
the minor child, a person who has a child in substitute care, a person who has a child in
foster care, a person who wishes to become a foster parent and the child is temporarily
placed under his care, the prospective adoptive parent, a person who has a child placed
under special regulations(…), if the person to whom the health care is provided is the
minor child, the person who lacks the legal capacity or a person with limited legal
capacity (hereinafter "the person incapable of giving informed consent") and in an
appropriate manner the person incapable of giving informed consent.”
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→ Based on the aforementioned can be assumed that
in Slovak law system the person is capable of giving a
valid consent to treatment upon the reachment of the
age of 18.
→ Therefore, altought the 16-year old child is
considered to be close to the legal age he is still the
minor under the age of 18 (unless he acquired majority
earlier by marriage), the consent to treatment is given by
his parents or other persons with parental responsibility,
in the light of abovementioned Act, also even in cases
such as medical examination, therapy or treatment.
5.) THE AMBIT OF PARENTAL CONSENT
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→ limitations:
A) no parent can consent to any treatment or procedure which is
unlawful
B) where the child is a ward of court parental power is limited and it
is necessary to obtain the prior consent of the court before the
´important´ or ´major´step is taken in the life of the child
C) parents always must act in the best interest of the child
D) limits to the consent which a parent can give in the case the child
is old enough to understand what is involved
→ . The court can overrule parental consent which is not in the best
interest of the child.or overrule the refusal to consent to treatment
which is in the best interest of the child.
6.) THE COURT´S APPROACH TO RELIGIOUS
ISSUES
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,, Parents may be free to become martyrs themselves. But it
does not follow that they are free, in identical
circumstances, to make martyrs of their children before they
have reached the age of full and legal discretion when they
can make the choices for themselves.”
→ The court pays every respect to the family´s religious
principles. But, the parent´s wishes and views will be given
effect to by court only if they are in the best interest of the
child and are in accordance with the child´s welfare.
→ ,,Case law indicates a general willingness on the part of
the judiciary to accept medical advice that the treatment
proposed is the only means of saving a sick child, even when
it means overriding religious tents of his or her parents.”
CHARTER OF RIGHTS OF CHILDREN IN
HOSPITAL (1992)
→ is a part of Convention on the Rights of Child
1989
 → sets out several problems concerning
placement of the child in hospital which should
be followed:
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1.) Children should be admitted to hospital only if care they require cannot be equally well provided at
home or on a day basis.
2.) Children in hospital shall have the right to have their parents or parent substitute with them at all
times.
3.) Accommodation should be offered to all parents, and they should be helped and encouraged to
stay. Parents should not need to incur additional costs or suffer loss of income.
4.) Children and parents shall have the right to be informed in a manner appropriate to age and
understanding. Steps should be taken to mitigate physical or emotional stress.
5.) Children and parents have the right to informed participation in all decisions involving their health
care. Every child shall be protected from unnecessary medical treatment and investigation.
6.) Children shall be cared for together with children who have the same developmental needs and
shall not be admitted to adult wards. There should be no age restriction for visitors to children in
hospital.
7.) Children shall have full opportunity for play, recreation and education suited to their age and
condition and shall be in an environment designed, furnished, staffed and equipped to meet their
needs.
8.) Children shall be cared for by staff whose training and skills enable them to respond to the
physical, emotional and developmental needs of children and families.
9.) Continuity of care should be ensured by the team caring for the children.
10.) Children shall be treated with tact and understanding and their privacy shall be respected at all
times.