Sterilization of Girls Who Suffer from Disabilities - Essay Example

Medical Law and Ethics Student’s Name institute Introduction The health care profession is not only guided by legal frameworks, but also by ethical values. These two factors ensure that the individuals in the healthcare profession do not indulge in activities that could endanger the lives of the patient. Additionally, these two factors ensure that individuals do not perform medical treatments without any considerations of the patients. Ethics is defined as principles that govern the way individuals in the medical profession as they undertake their duties. This principles do not necessarily have to be enacted in the existing legislations of any given country. However, they arise from moral values. It should, however, be noted that ethics and religion are two very distinct aspects despite the fact that all are guided by moral values (Beauchamp & Childress 2013; Forrester & Griffiths 2011). Therefore, ethics reflects on the ability of the medical profession to decide what is right and what is wrong, and the decision should have the best interest of the patient in mind. As a result of this many countries, Australia included, have come up with the Hippocratic Oath to govern individuals in the medical oath. The Hippocratic Oath is normally considered as the base for modern medical ethics (British Medical Association 2012). In addition to the Hippocratic Oath, medical practitioners are also governed by the Health Practitioner Regulation National Law Act which stipulates the manner in which medical practitioners conduct themselves while on duty. However, it should be noted that despite the existence of medical ethics, it would be impossible to enforce them without the assistance of the law. This is to say that existing legislations governing health care ensure that there exists no loophole. Furthermore it would be quite difficult to enforce ethics in the health care profession without the assistance of the law (Brazier 2011). Additionally, issues of ethic and law have been on the rise in Australia for quite a while now. This is in regard to the increasing issues of sterilization of disabled girls. Parents have for years had their daughters’ sterilized under the notion that they are protecting their girls. This issue is evident by statistics for the past ten years which put the number of application to have girls sterilized at 38 in New South Wales only. This is a clear indication that sterilization of disabled girls is real and should not be taken for granted as it contravenes their basic human rights (Senate Community Affairs Committee Secretariat 2013) Legal issues The case study also presents certain legal issues that may arise in relation to sterilization of girls who suffer from disabilities. This is due to the fact that the medical process involved in sterilization of girls is not a common medical procedure. Therefore, were it to be done then it is quite possible that the individuals in the medical profession could be faced with legal actions in relation to the medical procedure they undertake. However, the two main legal issues that could arise in the case study are; trespass and assault. This is because the sterilization procedure involves body contact in respect to the patient and the doctors undertaking the procedure. Trespass Trespass is wrong against an individual under common law and is treated as a tort under common law. Whereby torts are wrongdoings against an individual. Therefore, trespass scan be described as the invasion of a person’s life by another without consent. This is to say that if medical practitioners conducted medical procedures on a patient then their action would amount to trespass (Corfield, et al 2010). However, for a tort of trespass to suffice there are certain elements or conditions that have to be met. Without these elements in place, it becomes quite difficult to defend an action of trespass. However, the main element for a tort of trespass in physical touch (Herring 2009). Despite the consent of the parents, an action of trespass can still suffice in relation to the case study. This can be attributed to the fact that the parents may not have the best interest for their child. Therefore, in such cases a doctor may be sued for trespass if it is deemed that the interest of the child were not factored in deciding whether sterilization is the option for a disabled girl. Additionally, where a minor understands the events taking place and does not agree to the events then the doctors could be sued for trespass. This is despite the fact that the parents may have consented to the medical procedure (Hope, et al 2008) Assault Assault on the other hand is a wrong derived from statutory law could easily arise in instances involving the sterilization of girls as a result of them being disabled. Unlike trespass which is a civil wrong, assault is a criminal offense (Leung 2008). A criminal offense is an offense against the state, and such offences are normally governed by a criminal cord. According to section 245 of the Australian Criminal Code, assault is defined as application of force likely to cause harm either directly or indirectly without the consent of the other person. Therefore, sterilization could easily cause harm as the procedure involves the use of force and could amount to an offense of assault. Additionally, the Criminal Code under section 246 further states that the offense of assault could suffice even if consent is granted. In relation to the case study, despite the fact that many parents consent to have their children be sterilized, the doctors undertaking the procedure could well be sued for trespass. This mainly if it is found that sterilization procedure was not necessary and this could be the case if procedure was not for an emergency and that there were other solution to the issue. This was the case in a 2010 decided case where the judge stated that sterilization should only be conducted for emergencies only and that every case should be analyzed separately. Therefore, sterilization should be done merely because the parents want it but the health of the minor should be put into perspective. As a result of this it becomes easy for medical practitioners to avoid legal consequences and at the same the health interest of the minor are well safeguarded (McLean 2013). Ethical Issues In the case of disabled girls being sterilized merely due to the fact that they are disabled possess a great challenge to the medical profession as a whole. This is due to the fact that such procedures may infringe upon the rights of the girls. According to the Australian Medical Association (AMA), every individual has a right to decide what happens to their reproductive organs [ref]. Therefore, based on the case study there are various ethical issues arise in relation to sterilization of young girls who suffer from disability. Consent and autonomy Consent indicates the willingness and agreement of the patient to undertake or undergo a certain medical procedure. Consent can be three main forms; written consent, verbal consent or implied consent (Myser 2011). Written consent involves signing of a medical form which indicates that the patient voluntarily agrees to the medical procedures. Verbal consent, on the other hand, refers to consent given by word of mouth and in most instances a third party has to be present to affirm the consent. Implied consent, on the other hand, refers to a situation whereby the patient does not oppose the medical procedure but by their action it is deemed that they agree to the procedure (Pence 2008). Autonomy on the other hand refers to the ability of individuals to decide what is best for them. Therefore, a medical profession should in no way infringe on the independence of an individual to decide what is best for them in relation to medical procedures and treatment. In addition to this there are instances whereby the patients lack the capacity to consent to any form of medical treatment. This could arise in situations where the patients are of unsound mind as stated in Mental Health Act or if the patients are minors as stipulated in Guardianship and Administration Act. In such cases the next of kin is required to give consent for treatment. Additionally, Australian courts in particular the Family court and the State Supreme Court have been afforded jurisdiction to decide on behalf of the children. However, in coming up with their decision they have to put into perspective various factors. As a result the courts have adopted the best interest rule in coming up with its decisions. The best interest looks at the present and future implications that a girl child may face as a result of sterilization. In addition to these, the courts look at the interest of the parents in respect of their disabled girl. If the court views that the parents are not acting for the interest of the child then they can make their decision without considering the parents (Bonython 2013). Additionally, the consent by parents should be in the best interest of the patient who lacks capacity (Jackson 2009; Hope 2004). In relation to the case study, one would have to ask themselves whether sterilization is the best way to go for disabled girls. This is in respect to the fact that despite their disabilities they enjoy the protection of the fundamental rights just like abled persons. Therefore, in relation to the case study medical practitioners should have the interest of the disabled girls in mind. This is to say that they should first examine all the possible remedies other than sterilization. If a girl whose is physically disabled but is capable of undertaking activities that are presumed normal without any hindrance in respect of the disability, then sterilization should not be the best option. In addition to this, even if consent for sterilization has been given by the girl’s parents or guardians, it would be unethical for medical practitioners to continue with the operation. Therefore, consent does not necessarily warrant the undertaking of any medical treatment, but rather the doctors have to look at the prevailing conditions and determine which the best mode of treatment for their patients is (Tovey 2008). Conclusion In conclusion, medical ethics and law go hand in hand in ensuring that patients are afforded the best medical attention. Additionally, the existence of the code of ethics in Australia ensures that the doctors are careful when undertaking their duties. Furthermore, the code of ethics ensures that instances of medical practitioners misusing their knowledge and skills are greatly minimized. Law, on the other hand, ensures that doctors who go against what is required of them do not go unpunished. Therefore, with the help of law and ethics in the health care, it has become easy to govern the activities of medical practitioners. Additionally, the interest of the patients should always come first. This is to say that the medical practitioners should always ensure that the interests of the patient are safeguarded, especially minors who lack the legal capacity to consent to medical procedures. References Australian Medical Association (AMA) (2012). Australian Medical Association (AMA), Position Statement. Beauchamp, T.L. & Childress, J.F. (2013). Principles of Biomedical Ethics (7th ed.). Oxford: OUP. Bonython, W (2013). Involuntary or coerced sterilization of people with disabilities in Australia. Canberra. Brazier, M. (2011). Medicine, Patients and the Law: Revised and Updated Fifth Edition (5th ed.). London: Penguin Books Limited. British Medical Association. (2012). Medical Ethics Today: The BMA's Handbook of Ethics and Law. New Jersey: John Wiley & Sons. Civil Law Act (2002). Retrieved from www.legislation.act.gov.au/a/2002-40/current/pdf/2002-40.pdf Corfield, L., Granne, I. & Latimer-Sayer, W. (2010). ABC of Medical Law. New Jersey: John Wiley & Sons. Criminal Code (1995). 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Law for Doctors. New Jersey: John Wiley & Sons. Mental Health Act (2000). Retrieved from https://www.legislation.qld.gov.au/LEGISLTN/.../M/MentalHealthA00.pdf McLean, S.A. (2013). First Do No Harm: Law, Ethics and Healthcare. Farnham: Ashgate Publishing, Ltd Myser, C. (2011). Bioethics Around the Globe. Oxford: Oxford University Press. Pence, G. (2008). Medical Ethics: Accounts of the Cases that Shaped and Define Medical Ethics. New York: McGraw-Hill Companies, Incorporated. Senate Community Affairs Committee Secretariat. (2013). Involuntary or coerced sterilization of people with disabilities in Australia. Canberra: Senate Printing Unit. Tovey, G. (2008). Medical Law. London: Sweet & Maxwell Read More