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Medical Law - Coursework Example

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In this regard, an individual’s right to self-determination is based on the individual’s capacity to exercise that right. In other words, autonomy and the right to self-determination are the ethical factors underlying what UK law accepts as capacity or competency.5 The law assumes outright that individuals have the capacity to consent to medical treatment. Under Section 1(2) of the Mental Capacity Act 2005, “a person must be assumed to have capacity unless it is established that he lacks capacity.”6 In other words, the capacity to consent is a rebuttable presumption, although healthcare professionals are required to start out with the presumption that all patients have the capacity to consent to medical treatment. The presumption of capacity to consent is not automatically denied minors. ...
s 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.7 It would therefore appear that the age of majority has been lowered to 16 in terms of determining the legal capacity to consent to or refuse medical treatment. However, Section 8(3) of the 1969 Act goes on to provide that Section 8 “shall not be construed as making ineffective any consent which would have been effective” in the event “this section had not been enacted”.8 It therefore follows that common law considerations relative to assessing capacity on the basis of the patient’s ability to process and understand information relative to medical treatment in a rational manner may be applied to all minors. Lord Scarman noted in Gillick v West Norfolk and Wisbech Area Health Authorit that fixing the age of minority at 16 was undesirable as it: Brings with it an inflexibility and a rigidity which in some branches of the law can obstruct justice, impede the law’s development and stamp on the law the mark of obsolescence where what is needed is the capacity for development.9 In other words, Lord Scarman felt that it was unrealistic to fix the age of development when many factors influenced a child’s level of maturity and thus the issue of whether or not a minor was in a position to understand the medical treatment proposed and thus make a rational decision about accepting or refusing to accept it. It therefore follows that capacity to consent to or refuse to submit to medical treatment is a subjective issue. Legal capacity to consent to medical treatment or medicine is not determined or fixed on the basis of the individual’s status. Therefore ...Show more
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Summary

Question 1: Capacity in medicine: “Discuss when a patient has the capacity to consent in medicine.” under UK Law. Individual autonomy forms the underlying basis for determining whether or not a patient has the requisite capacity to consent to medicine or medical treatment.1 The principle of autonomy is connected to respecting the integrity of the body and individuals’ right to determine whether or not they want to permit medical professionals “access to their bodies”.2 The classical definition of autonomy was stated in a US case in 1914 and adopted by the House of Lords in 1993…
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