THE RIGHTS OF HOSPITALIZED CHILDREN

KRISTINA KOCICOVA THE RIGHTS OF HOSPITALIZED CHILDREN

→adults(suijuris) vs. Children(lackthecapacity to give a validconsent, non-age) → theattendingphysicianmustobtainvalidconsent to treatmentotherwisehecommits tort and crime Consent to treatment

→beforeanytreatmentthevalidconsentisneeded to begiven by thepatient, CHILDREN ARE NOT EXEPTION BUT Asthey are notable to givesuchconsenttheremustbesomeonewhogives a consentinstead → 3 situationsmayappear: 1.) THE NEED FOR CONSENT

→ a) Gillickcompetentchild(commonlawsystem) → b) Childunable to give a validconsent(lackofintellectualability to understand and/or lackof maturity to for a balancedjudgement) → c) Competentchildwhorefuses to consent b + c →substituteconsentofparents, person withparentalresponsibility, court

→thedutyofdoctorsis to providethebestcarerecognisedasappropriate in certaincase →the role ofparents: to give/ withholdtheconsentin thebestinterestofthechild →iftheparent´sdecisionisnot in thebestinterestofthechildtheconsentmaybereplaced by thecourt CHECKS AND BALANCES 2.) the role ofparentalconsentvs. Court and doctors

→parentalresponsibility→power over childrenisnotunlimited→custody in allaspectsnecessarilyendsattheageof 18 BUT the part ofcustodialpowerenablesparent to havephysicalcontrol over child´s body endswhen´theyearsofdiscretion´ isreached. 3.) WHO CAN CONSENT INSTEAD OF the CHILD?

,,Alltherights, duties, powers, responsibilities and authoritywhich by law a parent has in relation to thechild and hisproperty“ Parentalresponsibilityaccording to Thechildrenact 1989

1. Father and mothermarried to eachotheratthetimeofchild´sbirth 2. Onlymother 3. Guardian 4. A Person in whosefavourthecourtmakes aresidenceorderwithrespect to thechild 5. Localauthority or otherauthorised person Theactprovidesthatfollowingpersonshaveparentalresponsibility, thuscanconsent to medicaltreatmentofthechild:

Commonlawsystemvs. Slovak law 4.) child´sownconsent-comparison-

Differsbetweenthreestagesofdevelopmentofthechild: 1. Childof tender years 2. ´Gillickcompetent´childunder 16 3. Sixteen and seventeen-yearoldchild Commonlaw

→notyet in ´theyearsofdiscretion´ →lackstheintellectualability to understandwhatisgonnahappen →lacksthe maturity to formbalancedconsent WHO CONSENT? → person withparentalresponsibility Childof tender years

→ term ´Gillickcompetent´ wasformeduponthecaseGillick v. WestNorfolkin 1986 →,,Altoughtitspecificallydealtwiththe adolescent competence to consenttocontraceptiveadvice and treatment, theprinciplesestablishedhave a generalapllication to allformsofmedicaltreatment.“ → The test of ´Gillickcompetence´ isbased on child´sunderstanding and intelligence "...itisnotenoughthatsheshouldunderstandthenatureoftheadvicewhichisbeinggiven: shemustalsohave a sufficient maturity to understandwhatisinvolved.„ WHO CAN CONSENT? → A childwhofullfiledtheabovementionedcriteria to be ´Gillickcompetent´ cangive a valid and effectiveconsent to particulartreatmentaswellasanadultwhoissuijuris ´gillickcompetent´ childunder 16

→FamilyLawReformAct 1969 provides in Section 8: ,,(1) Theconsentof a minorwho has attainedtheageofsixteenyears to anysurgical, medical or dentaltreatmentwhich, in absenceofconsent, wouldconstitute a trespass to his person, shallbeaseffectiveasitwouldbeifhewereoffullage; and where a minor has by virtueofthissectiongivenaneffectiveconsent to anytreatmentitshallnotbenecessarytoobtainanyconsentforitfromhisparent or guardian.“ WHO CONSENT? →Childitself Sixteen and seventeen-yearoldchild

→Healthcare and servicesrelated to providingofHealthCareAct2004: ,, (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.” Slovak law

→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.

→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. 5.) the ambit ofparentalconsent

,, 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.” 6.) thecourt´sapproach to religiousissues

→is a part ofConvention on theRightsofChild 1989 →setsoutseveralproblemsconcerningplacementofthechild in hospitalwhichshouldbefollowed: Charter of Rights of Children in Hospital (1992)

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.

THE RIGHTS OF HOSPITALIZED CHILDREN