Child--medical treatment--court's inherent jurisdiction--treatment contrary to clinical judgment: Re J (a minor)(medical treatment).
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Although section 8 of the Family Law Reform Act of 1969 gives minors who have reached the age of 16 the right to consent to medical, surgical or dental treatment, it confers no absolute right on such minors to refuse treatment. In exercise of its inherent jurisdiction to protect minors, the Court had power to override the refusal of a girl aged 16 to consent to treatment for anorexia nervosa. The Court of Appeal so stated in dismissing an appeal by the girl J against Mr Justice Thorpe's order, authorising her removal to a specialist unit in London for treatment.
The paper is concerned, in the main, with selective non-treatment of those incapable of making treatment decisions of their own. It draws attention to the conflict between the law and the medical profession in this field which was predicted some ten years ago and traces the British case law from then until the present day. It concludes that there is no such legal threat to medical practice in Great Britain and that any doubtful practices are currently controlled through the concept of the health care team.
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Recent advances in medicine and biomedical science have brought in their wake a whole array of moral, ethical and medico-legal problems. For eg, in relation to the withholding or withdrawal of treatment of neonates born with congenital malformations. While the technology to treat and thus to artificially prolong life is available, the related question of whether or not to do so and in what circumstances has to be considered. There is a paucity of cases in the courts. However, some useful principles can be drawn from a number of cases in the UK. The search for clearer legal and moral criteria has become more urgent. A way ahead appears to lie in the formation of Hospital Review Committees or some such mechanism which would enable the most appropriate decision to be taken in any one case bearing in mind the complex ethical and medico-legal issues involved.
Selective treatment of neonatal infants who are terminally ill or born with profound disabilities is becoming a controversial issue. The potential of medical technology, the practices of doctors and the expectations of parents have moved ahead of the law in this area. The interests of parents, children and medical practitioners would be better served by a clarification of the law. Legal change should be based on an ethical and moral foundation. The application of the "best interests" test should be given further consideration.
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In English law, a person aged 16 or over may give valid consent to medical treatment. Under the age of 16, a person who is of sufficient understanding and intelligence may also give valid consent. The right to withhold consent is not comparable.
Medical advances in newborn care have raised ethical dilemmas as to the level of care which is appropriate when an infant is severely damaged and incapable of a reasonable quality of life in the future. Some of the considerations, philosophical and practical, are discussed. It is concluded that within the framework of the law and after due consultation, decisions are best reached in privacy by the parents and their medical advisor and should be based on the perceived interests of the child.