Law and Medicine Assignment Sample

Introduction of :Law and Medicine Assignment Sample

Dilemma 2:

The issues of this dilemma are associated with mainly the consent of treatment of Sita, 14-year-old girl.

Issues

Sita’s case raises several bioethical dilemmas concerning her rejection of a kidney transplant, mainly concerning her capacity for making such a decision and the consequences of disregarding her autonomy.

1. Competence and Consent

The main issue arises as Sita, a 14-year-old girl has the legal capacity to make the decision of rejecting the transplant. As clarified by the case Gillick v West Norfolk and Wisbech AHA [1986] a minor person has the capacity to receive the treatment, if they can understand the treatment that is being administered to him or her. Apart from that, it is required to assess the patient’s ability to understand and refuse the treatment, which is defined as Gillick's competence. In evaluating the subject’s competence, the degree of understanding that Martha has regarding the nature, purpose, and impact of the transplant is crucial in this case.

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2. Best Interests Principle

It can be said that, if Sita is considered Gillick competent, her refusal may be denied by focusing on the sections of the Children Act 1989 that above all aim at providing the best interest for the child. The court or the healthcare providers may overrule her decision if they feel that the transplant is crucial for the patient’s health and survival. The principle established in Re R. (A Minor)[1]. This intervention has support in the cases of consent to treatment [1991] and the medical treatment cases of a minor [1993]. If the court considers it necessary for the life of Sita, this intervention is possible.

3. Parental and Judicial Authority

The other part is the parents’ and judicial authority’s role is also a part of this case. Parents commonly have the legal capacity to give consent for their children’s treatments and the decision made by Sita goes against the best interest[2]. The courts have proceeded to intervene and override her decision since her welfare as a patient is at stake and she has the right to live.

Rules

For the issue of Sita, five legal rules and principles can be adopted to solve the problem of rejection to transplant a kidney as a means of saving her husband’s life.

Gillick Competence:

The only rule which would be relevant for Gilik's competence was Gillick v Weston and Wisbech AHA [1986] legal case. This rule defines the circumstances in which a child below 16 years is capable of legally consenting to his or her treatment on the basis of the minor’s capacity. Therefore, the proposed treatment and its consequences can completely depend on Sita. In this case, if Sita can come up with such an understanding that can cause to refuse the advances then her rejection will be legally valid.

Effective Principle:

Another effective rule needs to require that any medical treatment decision made for a child must further the child’s interests. This policy is rooted in common law and statutory instruments such as the Children Act 1989[3]. However, this decision can be overruled if the girl’s decision is considered detrimental to her effective treatment.

Parental Consent and Judicial Authority:

When a minor’s capacity is questionable or the proceedings can lead to extreme bodily detriment, the parent’s consent can legally be used. Apart from that it can also be seen that, it is the parents who hold the legal ability to provide permission when it comes to medical treatment of their children especially when the treatment involves the child’s life[4]. If parents agree to the refusal, the court can step in, citing the child’s best interest, against the parents’ requirements.

Human Rights Considerations:

The principles of human rights, especially in the case of Europe certain elements like ECHR (European Convention on Human Rights) can be effective for the right to life under Article 2. Besides, the right to respect private and family life under Article 8 of ECHR can also be effective. These rights ensure that any decision can be regarding Sita’s liberty and freedom as well as her right to life and health.

Application

For the issues of Sita, many rules can be applied effectively information about which are provided below.

Gillick Competence

In Gillick v West Norfolk & Wisbech AHA [1986] AC 112, the principle was applied that a minor of below sixteen years’ age can provide consent to medical treatment for herself or himself. This rule considers that a minor has sufficient understanding to appreciate the nature of the treatment and its consequences. This principle is used to evaluate whether Sita’s refusal can be accepted or not.

Children Act 1989: This legislation can act as an advocate for any decision regarding the child to be made in the best interest of the child. According to the Act, as described in Section 1, the case of a child can proceed with the consent of Sita as she is 14 years old[5]. By the use of this principle medical treatment can be developed effectively and the refusal of treatment can be overruled if necessary.

The Roles of Parents and the Judiciary

Family Law Reform Act 1969: As one of the main features, this act permits parents to give their consent towards medical treatments to be administered on their children. However, a minor’s competence can be challenged and barred from making decisions for himself which, in the courts view, leads to grave consequences. The court also holds the implicit prerogative with respect to decisions that pertain to the child’s best interests, no matter the child’s and parents’ wishes.

Human Rights Considerations

European Convention on Human Rights (ECHR): Article 2 which is focused on the Right to Life helps to protect the patient’s life to make decisions that are made concerning the medical treatment. It could support overruling a minor’s decision to refuse treatment in case this decision would be fatal[6]. Besides, Article 8 is designed to protect the individual’s liberty or her actions and choices. Although this right can be used to justify all actions related to respecting Sita’s decision, it is necessary to refer to Article 2 as well.

Conclusion

Therefore from the case of Sita ethical and legal complexity can be observed in the treatment procedure development. The proper application of these regulations can help to make decision of kidney transplant of Sita. It can ensure the safety and healthy life of Sita. Family consent can also be considered for kidney transplant issues as it is associated with the life of Sita.

Dilemma 5:

The issues of this dilemma are associated with mainly the infertility of Michain in the clinic.

Issues

Michail is likely to have face legal and personal problems as a result of the loss of cryopreserved sperm which he planned to use in availing himself of the future. As there is a chance of becoming infertile due to chemotherapy in the future. The first and most fundamental legal problem associated with determining the negligence of the clinic’s legal responsibility. The case of a cleaner unplugging the storage fridge causing the sperm to freeze has caused a huge issue concerning the clinic’s standard of care. Besides, the clinic has breached the duty of care by not closely supervising and properly maintaining the proper storage facilities and equipment[7]. Therefore, the clinic could be held as negligence there was a lack of sufficient protection of measures that resulted in the problem of Michail’s sperm loss. Still, a crucial question arises as to the consequences of Michail, who lost his ability to be a biological father of a child.

The disappearance of his sperm stored in the cryobank may have the worst possible effects that may result in emotional and psychological issues for Michail as he can become infertile biologically. This situation even impacts Michail’s and his family’s plans. Moreover, ethical and legal issues arise regarding compensation for such a loss. It can affect the future of Michail and Michail may not be able to start a family in the future. Apart from that, lost opportunities in childbearing and cost of fertility treatments can be considered. Michail’s case demonstrates the necessity of implementing specific guidelines for fertilisation. Besides the preservation of oocytes and embryos together with the obligation of clinics to make significant efforts to safeguard and dispose of the cryopreserved material. It also emphasises the issue of legal in the event of medical malpractice.

Rules

In addressing Michail's situation, several effective legislations or legal rules can be applied to determine liability and compensation:

The duty of care & negligence:

The general principles of negligence by the clinic do not safeguard the patients’ interest through the provision of secure storage for the sperms that have been cryopreserved. The test of negligence was applied in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 where the defendant has not acted as a reasonable man in the defendant’s position[8]. Apart from that, the clinic had not come up with adequate measures to ensure that the unauthorised persons did not gain access to the storage equipment. Besides, there is also a chance of not managing the equipment properly can be considered as an effective issue.

Therefore, another act of consumer rights known as Consumer Protection Law implies that the services rendered by the clinics should have reasonable care and competence. If the clinic is unable to adhere to this rule which was evidenced by the breakdown of the storage fridge, then the clinic will be vicariously liable for Michail’s loss.

Compensation for Emotional Distress

Tort Law: For this huge loss, Michail may claim for a non-financial loss that by emotional shock resulting from damage to his sperm and the probability of his future childbearing. Apart from that, Hicks v Chief Constable of South Yorkshire Police [1992] 1 WLR 274, is another effective law that can help to provide about the distress due to the damage of his sperm. Therefore, following this rule can be helpful for the loss of Michail.

Loss for future development

Loss of a chance of Success under principles stated in Watts v Morrow [1991] 1 WLR 1421. This rule holds that the claim is allowed to compensate for Michail’s lost chance because of the defendant’s misconduct[9].

Application

Applying the relevant rules to Michail's case involves assessing the clinic's liability for negligence and the compensation for his losses.

Duty of care refers

The duty of the clinic was to keep the sperm safe by cryopreserve where the clinic has shown negligence. The negligence that forms the basis of the clinic’s duty to store cryopreserved sperm is the general duty of care. The Bolam v Friern Hospital Management Committee [1957] is the law that guides the clinic should comply with the standard of care that a reasonable practitioner in the field can offer[10]. If the clinic failed to adhere to standards of proper maintenance of the storage fridge, like a lack of sufficient security or monitoring those who do not have permission to access the fridge or delays in inspections, then it would be considered negligent. There is also the indication under the Consumer Rights Act 2015 that the clinic may have to provide the services with reasonable care and skill. If this storage equipment was mishandled and did not meet this standard, then the clinic faced legal consequences.

Compensation for Emotional Distress

Michail can recover from the outrage of the damage, as a result of the loss of sperm which affects his reproductive rights. Such compensation for distress is available if it was reasonably expected as a natural consequence of the clinic’s negligence, as evident from Hicks v Chief Constable of South Yorkshire Police [1992]. Therefore, the loss of future options to provide remedies for the damage category for wronged buyers is very complicated[11]. According to Watts v Morrow [1991] Michail may seek damages for the loss of the chance to have biological children, this indicated the extent of the clinic’s negligence had on him emotionally.

Compensation for loss can also be considered for Michail as it can have a huge effect on his future life of Michail. Therefore effective application of these rules in a proper way can help to provide proper solution of this issues.

Conclusion

Therefore, Michail’s case of failure in the clinic to cryopreserve the sperm is a serious issue. This issue shows breaching of the terms of the contract with Michail and also shows the negligence of the clinic in not managing equipment properly. Therefore, for this issue, there are many effective rules available in the UK which can be applied effectively. The way of application of these legislations is also mentioned.

Dilemma 6:

The issues of this dilemma are associated with mainly the transplantation of the organs of 65-year-old David.

Issues

David has numerous ethical and legal dilemmas concerning the choice of organ donation. As David has been considered to have a brain stem dead, his children are also hesitant towards the matter of organ donation.

Presumed Consent

In the UK the preferred option for organ donation is an opt-in procedure and the default position is also opt-out. Since David did not mention anything about collecting his organs as a suitable organ pool, therefore this raises a significant issue[12]. However, the concept of presumed consent can be problematic if there are signs that David had an opposing perception towards organ donation regardless of not listing his name on the donor’s registry.

Ethics and family consent

David’s children have contrasting opinions and beliefs regarding the donation. Therefore, Benjamin has argued that David would have agreed to go through the process under the opt-out system and Natalia is also against the removal of organs. That is why this case shows several ethical dilemmas, such as honouring the family’s decisions or upholding the tenets of presumed consent. Ethically, the family’s objections must be taken, especially when the family is articulating David’s ethical perceptions of the world. In that case, there is a need to strike a balance with the reasonable legal presumption in light of family and individual rights and freedom. Deciding whether the donation should be improved despite Natalia’s objection entails a consideration of the consent and family-directed laws of the patient. Therefore these are some effective and crucial issues for the reduction of which rules are necessary.

Rules

For the issues of David, several UK rules and principles apply to the issue of organ donation under the opt-out system.

Organ Donation and the Presumed Consent

Human Tissue Act 2004: This act is the legal backing for the organ donation system in the UK as far as organ donation is concerned. This legislation means that people are considered to have agreed to organ donation save for circumstances where they have indicated to the contrary[13]. The Act safeguards can provide an idea of whether David failed to mention an organ donation decision, then his organs will be considered to be available for donation. However, the Act also permits family members of the patient to be consulted on the decision-making and their opinion be considered, which adds an element of ethical analysis.

Family Values and Ethics

Family Consent and Human Tissue Authority Guidance: Family objection to the donation of the organs is prohibited, guidance to this effect is provided by the Human Tissue Authority. It is important that the family’s requirements, if they align with the values known to the deceased and after respecting the HTA 2004’s presumption consent, are observed as well[14]. This guidance also stresses on the factor of ethics when the families are objecting to the patient’s treatment.

Respect for Individual Autonomy

Mental Capacity Act 2005: While mainly for living people, this Act emphasizes how one must respect the patient’s rights and their previous decisions. In the case of organ donation, such evidence, if there was that pointed to the fact that David did not support donations, should be respected, even under the new ‘opt-out’ system[15].

These rules can play a crucial role in the case of Michail.

Application

Applying the UK rules to David's situation involves addressing both the legal framework of presumed consent and the ethical considerations surrounding family objections.

Human Tissue Act 2004

In Britain, the Human Tissue Act of 2004 prevailed and it is clear that David’s organs would have been available for transplantation because he did not exclude himself from the system[16]. This law assumes that a person is an organ donor, unless, he has not expressed his desire to opt out. However, the Act also requires consulting the family since their opinion has to be considered if they embody the patient’s expressed opinions or preferences.

Wishes of Family and Ethical Issues

The case of the Human Tissue Authority also points out that family opposition has to be taken into account even if the law assumes a person’s consent. However, since Natalia does not agree to the opt-out system and says no to the donation, Benjamin proves that there is an ethical conflict. Relatives’ preferences should be taken into consideration, especially where Natalia is concerned[17]. At the same time, the family’s position may reveal David’s official stance on the matter of organ donation which must be obeyed provided that there is ample proof of his attitudes existing.

Respect for Individual Autonomy

The Mental Capacity Act which was passed in 2005 lays down that one must act in a way that respects the individual’s right to autonomy and decisions that the individual may have made in the past. If the information is available that David had personal beliefs that he did not want to be a donor, then this must be taken into consideration even under the system of opt-out[18]. In this case, it is rather important to navigate between the legally stipulated primary presumption in favour of health and the coming ethical duties regarding patients’ self-determination and family concerns.

Conclusion

When focusing on the case of David, then it can be said that organ donation can become a serious issue for David. Even the children of David is unable to make any decisions for this as Benjamin is fine with organ donation but Natalia has hesitation with this. Therefore for this issue, many significant rules can be observed, and effective application of these rules can reduce these issues. However, the family can also play a crucial role in managing this issue of David regarding organ donation. 

Reference List

Journals

Anderson P, Davidson G, Doherty F, Hanna H, Harper C, Lynch G, McClelland R and McKenna C, 'Legal Capacity, Developmental Capacity, and Impaired Mental Capacity in Children Under 16: Neurodevelopment and the Law in Northern Ireland' (2023) 87 International Journal of Law and Psychiatry 101872. https://www.sciencedirect.com/science/article/pii/S0160252723000158

Beale C, Lee-Davey J, Lee T and Keene AR, 'Mental Capacity in Practice Part 2: Capacity and the Suicidal Patient' (2024) 30(1) BJPsych Advances 11-20. https://www.cambridge.org/core/journals/bjpsych-advances/article/mental-capacity-in-practice-part-2-capacity-and-the-suicidal-patient/43EBD3BDD968B7E1554BCEA7EB990803

Curtice M, 'The Interface Between the Mental Health Act and Mental Capacity Act: Physical Health Treatment' (2024) BJPsych Advances 1-9. https://www.cambridge.org/core/journals/bjpsych-advances/article/interface-between-the-mental-health-act-and-mental-capacity-act-physical-health-treatment/7016EB8A4C23360F56CB8735C1F96E6B

Davies M and Miola J, 'Medical Practice and Professional Liability' in Professional Liability: Law and Insurance (Informa Law from Routledge 2020) 659-718. https://www.taylorfrancis.com/chapters/edit/10.4324/9781003123231-11/medical-practice-professional-liability-michael-davies-jos%C3%A9-miola

Gardner J and Green S, Tort Law: Cases and Materials (Bloomsbury Publishing 2024). https://www.bloomsbury.com/uk/tort-law-cases-and-materials-9781509971893/

Hale B, 'Scarman Lecture 2019: 30 Years of the Children Act 1989' (2020) 32(1) Child and Family Law Quarterly 3-12. https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/chilflq32&section=4

Ikpeze OV and Oti-Onyeama LA, 'The Child Rights Act: A Critical Appraisal of the Child’s Rights Act/Laws in Nigeria How Effective in South-Eastern States' (2021) 1 Journal of International Human Rights and Contemporary Legal Issues. https://www.journals.ezenwaohaetorc.org/index.php/JIHRCLI/article/view/1873

Johnston C and Roper S, Medical Treatment: Decisions and the Law (2022). https://www.torrossa.com/gs/resourceProxy?an=5352823&publisher=FZ0661

Leston M, De Lusignan S and Hobbs RF, 'Pass the Tissue: Restoring Researcher Access to Legal Human Donations' (2024) Journal of Medical Ethics. https://jme.bmj.com/content/early/2024/07/04/jme-2023-109033.abstract

Lewis A, Koukoura A, Tsianos GI, Gargavanis AA, Nielsen AA and Vassiliadis E, 'Organ Donation in the US and Europe: The Supply vs Demand Imbalance' (2021) 35(2) Transplantation Reviews 100585. https://www.sciencedirect.com/science/article/pii/S0955470X20300586

Madden B and Cockburn T, 'Information About Alternative Treatments: The Approach to Determining Breach of Duty' (2023) 31(8) Australian Health Law Bulletin 147-151. https://eprints.qut.edu.au/244294

Mbila AM, 'Breathing New Life into Dry Bones: The Evolving Paradigms in the Regulation of Human Tissue Transfer in Kenya' (2024) 1(1) Riara Law Journal 29-40. https://journals.ru.ac.ke/index.php/rlj/article/view/5/14

Merrills JG and Robertson AH, Human Rights in Europe: A Study of the European Convention on Human Rights (2022). https://www.torrossa.com/gs/resourceProxy?an=5511825&publisher=FZ5100

Mitchell A, 'Medical Consent for Under-Sixteens: A Comparative Analysis' (2023) 23 UC Dublin L Rev 110. https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/ucdublir23&section=10

Nurmala LD, 'Criminal Responsibility by Parents as Actors in Crimes of Violence Against Underage Children: Study of the Child Protection Act' (2023) 1 Novateur Publications 64-71. http://novateurpublication.org/index.php/np/article/view/71

Wilk C, 'Invitation to Treat? Supreme Court Clarifies the Professional Practice Test' (2023) Mondaq Business Briefing NA-NA. https://go.gale.com/ps/i.do?p=HRCA&sw=w&issn=&v=2.1&it=r&id=GALE%7CA766546412&sid=googleScholar&linkaccess=abs

Zlatev Z, 'Quantification of Damages for Non-Pecuniary Losses Deriving from Breach of Contract' (2020) 40(4) Legal Studies 548-564. https://www.cambridge.org/core/journals/legal-studies/article/quantification-of-damages-for-nonpecuniary-losses-deriving-from-breach-of-contract/6AE37AE0D7528B69565D41C2592D6F71

[1] Davies M and Miola J, 'Medical Practice and Professional Liability' in Professional Liability: Law and Insurance (Informa Law from Routledge 2020) 659-718.

[2] Johnston C and Roper S, Medical Treatment: Decisions and the Law (2022).

[3] Ikpeze OV and Oti-Onyeama LA, 'The Child Rights Act: A Critical Appraisal of the Child’s Rights Act/Laws in Nigeria How Effective in South-Eastern States' (2021) 1 Journal of International Human Rights and Contemporary Legal Issues.

[4] Anderson P, Davidson G, Doherty F, Hanna H, Harper C, Lynch G, McClelland R and McKenna C, 'Legal Capacity, Developmental Capacity, and Impaired Mental Capacity in Children Under 16: Neurodevelopment and the Law in Northern Ireland' (2023) 87 International Journal of Law and Psychiatry 101872.

[5] Hale B, 'Scarman Lecture 2019: 30 Years of the Children Act 1989' (2020) 32(1) Child and Family Law Quarterly 3-12.

[6] Mitchell A, 'Medical Consent for Under-Sixteens: A Comparative Analysis' (2023) 23 UC Dublin L Rev 110.

[7] Nurmala LD, 'Criminal Responsibility by Parents as Actors in Crimes of Violence Against Underage Children: Study of the Child Protection Act' (2023) 1 Novateur Publications 64-71.

[9] Merrills JG and Robertson AH, Human Rights in Europe: A Study of the European Convention on Human Rights (2022).

[10] Madden B and Cockburn T, 'Information About Alternative Treatments: The Approach to Determining Breach of Duty' (2023) 31(8) Australian Health Law Bulletin 147-151.

[11] Beale C, Lee-Davey J, Lee T and Keene AR, 'Mental Capacity in Practice Part 2: Capacity and the Suicidal Patient' (2024) 30(1) BJPsych Advances 11-20.

[12] Wilk C, 'Invitation to Treat? Supreme Court Clarifies the Professional Practice Test' (2023) Mondaq Business Briefing NA-NA.

[13] Gardner J and Green S, Tort Law: Cases and Materials (Bloomsbury Publishing 2024).

[14] Lewis A, Koukoura A, Tsianos GI, Gargavanis AA, Nielsen AA and Vassiliadis E, 'Organ Donation in the US and Europe: The Supply vs Demand Imbalance' (2021) 35(2) Transplantation Reviews 100585.

[15] Curtice M, 'The Interface Between the Mental Health Act and Mental Capacity Act: Physical Health Treatment' (2024) BJPsych Advances 1-9.

[16] Zlatev Z, 'Quantification of Damages for Non-Pecuniary Losses Deriving from Breach of Contract' (2020) 40(4) Legal Studies 548-564.

[17] Mbila AM, 'Breathing New Life into Dry Bones: The Evolving Paradigms in the Regulation of Human Tissue Transfer in Kenya' (2024) 1(1) Riara Law Journal 29-40.

[18] Leston M, De Lusignan S and Hobbs RF, 'Pass the Tissue: Restoring Researcher Access to Legal Human Donations' (2024) Journal of Medical Ethics.

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