Protection of children's rights in the health care: problems and legal issues.

OBJECTIVE: Introduction: Among all categories of patients children (minors) must be protected first. It is caused so by the specificity of the treatment, their vulnerability, the need of further protection and supervision. Providing of medical care services for children are often connected with the risks of the process of treatment, and of the drug usage. The aim: To identify the problems associated with the protection of the rights of minors and, on the basis of this, the basic guarantees of their rights, as well as mark the trends in the practice of ECHR. PATIENTS AND METHODS: Materials and Methods: The study is based on its own theoretical and empirical basis. The theoretical basis include scientific articles, expert reviews of legislation and communications of non-governmental organisations, and empirical - decisions of the ECHR, international legal acts and directives of the EU. RESULTS: Results: The main violations of the rights of minor children include the following: - legal representatives of children do not take to the account their interests (refusal of medical intervention or the choice of certain method of interference); - medical intervention under the influence of coercion; - providing of unwarranted medical care without the corresponding testimony; - providing of inadequate medical care: when the patient was only examined and ineffective treatment was prescribed, and others. As for mentally ill children, the following rights are usually violated: for life, for a fair trial. It has been proved that defects in the provision of health care are often predetermined by the poor state logistics of hospitals, lack of financing and appropriate pediatric medicines, outdated methods of treatment, and incompetence of some doctors. CONCLUSION: Conclusions: From the point of view of protecting the rights of minors, the rights of children in medicine can be classified into universal and special. The rights correspond not only to the corresponding duties of medical staff, but also of their parents (legal representatives). Violations of their rights are usually related to improper representation of the interests of children and disadvantages of providing medical services (defects in their provision), in particular, regarding the treatment of mentally ill, as well as in clinical trials. It has been proven that the practice of the ECHR on the protection of the rights of the child in the field of health is of particular importance.

Protecting victims of elder financial exploitation: the role of an Elder Abuse Forensic Center in referring victims for conservatorship.

OBJECTIVES: The aim of this study was to examine the extent to which an Elder Abuse Forensic Center protects financial exploitation (FE) victims through referral to the Office of the Public Guardian (PG) for investigation and possible conservatorship (called 'guardianship' in many states). METHOD: Los Angeles County Elder Abuse Forensic Center cases involving adults aged 65 and older (April 2007-December 2009) were matched using one-to-one propensity-score matching to 33,650 usual care Adult Protective Services (APS) cases. The final analysis sample consisted of 472 FE cases. RESULTS: Compared to usual care, Forensic Center cases were more likely to be referred to the PG for investigation (30.6%, n = 72 vs. 5.9%, n = 14, p < .001). The strongest predictors of PG referral were suspected cognitive impairment, as identified by APS (odds ratio [OR] = 11.69, confidence intervals [CI]: 3.50-39.03), and Forensic Center review (OR = 7.85, CI: 3.86-15.95). Among referred cases, the court approved conservatorship at higher rates - though not statistically significant - for Forensic Center cases than usual care (52.9%, n = 36/68 vs. 41.7%, n = 5/12). CONCLUSION: Conservatorship may be a necessary last resort to improve safety for some FE victims, and the Forensic Center appears to provide a pathway to this service. These findings suggest modification to the Elder Abuse Forensic Center conceptual model and contribute to an emerging body of evidence on the role of the Forensic Center in addressing elder abuse.

Processing Disability.

This Article argues that the practice of holding so many adjudicative proceedings related to disability in private settings (e.g., guardianship, special education due process, civil commitment, and social security) relative to our strong normative presumption of public access to adjudication may cultivate and perpetuate stigma in contravention of the goals of inclusion and enhanced agency set forth in antidiscrimination laws. Descriptively, the law has a complicated history with disability--initially rendering disability invisible; later, underwriting particular narratives of disability synonymous with incapacity; and, in recent history, promoting the full socio-economic visibility of people with disabilities. The Americans with Disabilities Act (ADA), the marquee civil rights legislation for people with disabilities (about to enter its twenty-fifth year), expresses a national approach to disability that recognizes the role of society in its construction, maintenance, and potential remedy. However, the ADA's mission is incomplete. It has not generated the types of interactions between people with disabilities and nondisabled people empirically shown to deconstruct deeply entrenched social stigma. Prescriptively, procedural design can act as an "ntistigma agent"to resist and mitigate disability stigma. This Article focuses on one element of institutional design--public access to adjudication--as a potential tool to construct and disseminate counter-narratives of disability. The unique substantive focus in disability adjudication on questions of agency provides a potential public space for the negotiation of nuanced definitions of disability and capacity more reflective of the human condition.

Custodial grandparents raising grandchildren: lack of legal relationship is a barrier for services.

In the United States, the majority of custodial grandparents are raising their grandchildren without a legal relationship. The lack of a legal relationship (i.e., foster care, custody, adoption) is a barrier for obtaining services and has resulted in limited access to information and public services, inadequate financial assistance, and difficulty providing medical and educational consent. This situation arises not only as a consequence of eligibility criteria, but also because children being raised by custodial grandparents remain outside the child welfare system. Federal and state policies were not designed for this population; subsequently, the majority of grandparent caregivers remain without access to services and support. In this article, perceptions of custodial grandparents concerning family obligations and the child welfare system as a barrier to pursuing a legal relationship are reviewed. Challenges with existing financial and health services, educational needs of grandparents and providers, and suggestions for policy changes are presented.

Assessing children's competence to consent to treatment.

Although district nurses provide care and treatment to adults, they also have children on their caseloads from time-to-time. Obtaining consent for the examination and treatment of children is a complex process, where parental responsibility and the developmental concept of Gillick competence become increasingly intertwined as the child matures to adulthood. In this article, the authors consider the requirements for Gillick competence, and highlight the factors district nurses must consider when determining whether a child is competent to give consent to treatment.

How the Guardianship System Can Help Address Gun Violence.

This article shows how state guardianship law can provide a mechanism for courts to reduce gun violence by removing the right to possess firearms from individuals found, after hearing and due process, to be incapable of safely possessing them. It explores how this often overlooked body of law not only complements extreme risk protection orders where they exist, but can also be used to accomplish a portion of what such orders are designed to do in states that have not authorized them. It concludes by suggesting some modest adjustments to guardianship law and practice that would help ensure that guardianship systems interventions in this arena are fair and effective.

Mental capacity act 2005: lasting powers of attorney.

In their final article on the Mental Capacity Act 2005, Richard Griffith and Cassam Tengnah consider the impact on district nurse practice of Lasting Powers of Attorney that allow a person to appoint one or more people to make decisions concerning their personal welfare, property and affairs, should they become incapacitated in the future. This can include for the first time in England and Wales since 1959 the ability to appoint another to make consent to treatment decisions on their behalf that will be legally binding.

Making decisions for incapable adults. 3: Protection, guardians and advocates.

District nurse Jane Simmons has concerns about a patient in her care who she suspects of being abused by her son. The patient has been left paralysed and unable to communicate by a stroke and cannot confirm the district nurse's suspicions. Both the nurse and the GP feel that the patient would be better managed in a care home, but her son refuses to consider the possibility. A vulnerable adult case conference concludes that this is probably because of the patient's considerable personal wealth and property. When the police confirm that there is insufficient evidence to prosecute the son, the care team wonder if the provisions of the Mental Capacity Act 2005 can be used to protect the patient.

Making decisions for incapable adults: the Scottish law.

With the law in England and Wales relating to incapable adult due to be given a new and improved structure with the implementation of the Mental Capacity Act 2005 in Spring 2007 (see last month's article) Richard Griffith outlines how the law in Scotland meets the needs of adults with incapacity through the Adults with Incapacity (Scotland) Act 2000.

Making decisions for incapable adults. 2: Advanced decisions refusing care.

In the second article focussing on the provisions of the new Mental Capacity Act 2005, Richard Griffith considers the impact on district nurse practice of advanced decisions refusing health care, that will allow a person to refuse even life-sustaining treatment in incapacity, and lasting powers of attorney, that will allow a person to appoint one or more people to make decisions concerning their personal welfare and property and affairs. For the first time in England and Wales a person will be able to appoint another to make consent-to-treatment decisions on their behalf that will be binding on district nurses and other health professionals.

Health protection and age-related legislation.

Community children's nurse Debbie James has developed an innovative scheme to allow secondary school children to obtain health advice by texting her service using mobile phones. As well as general advice about spots and rubella immunization, Sister James is also receiving inquiries about children's legal rights that also have a health protection purpose, such how old a child has to be before owning a pet or have an alcoholic drink. This article looks at how the law seeks to protect children by incrementally giving them legal rights as they develop to mature adults and how legal awareness can help inform community health practitioners' advice to their child clients.

Advance directives in the primary care setting.

Advance directives have been available for more than 20 years, yet only 2% of patients report having had a discussion about them with their physician. Physicians and patients appear to be reluctant to bring up the subject despite evidence that patients not only want help with advance directives, but report more satisfaction with their health care when the topic is addressed. The primary care setting is particularly well-suited to the establishment of advance directives. A clearer understanding of the benefits of advance directives to physicians and their patients can hopefully increase the use of this important health care resource.

Current legal status of advance directives in the United States.

Advance directive legislation has been in place throughout much of the United States for nearly 3 decades. The right to give an informed consent to or refusal of medical treatment has been recognized by state and federal courts, and that right has been determined to survive the loss of decisional capacity and may be exercised through the execution of instructional or proxy directives. Despite these developments, the percentage of the adult population with a formal advance directive of any type has never exceeded 15%. Moreover, a remarkable number of these directives are ambiguous and/or their existence is unknown to the physicians who are expected to rely upon them. Even unambiguous directives may not be followed at the critical stage in the trajectory of a patient's illness, and the accountability for such disregard by health care institutions or professionals is negligible to nonexistent. Nevertheless, there is real potential for advance directives, as a key element to sound advance care planning, to fulfill their initial promise as instruments of the prospective autonomy of patients. In order for that potential to be realized, primary care physicians must embrace advance care planning as a part of their professional responsibility to patients.

A 'bittersweet pill to swallow': learning from mental health service users' responses to compulsory community care in England.

Two forms of compulsory mental healthcare and supervision in the community are provided within the Mental Health Act 1983: Supervised Discharge Orders (SDOs) and guardianship. At a time when the Government are proposing to extend powers of supervision over people with severe mental illness in the community, it is appropriate that service users' experiences of existing legislation are examined and reported. Despite a range of literature that presents mental health service users' views and experiences, it remains unclear how service users respond to compulsory community mental healthcare in England. The present paper presents the findings of a qualitative investigation into service users' perceptions and experiences of living with SDOs. In the interviews, service users communicated their understanding of why mental health professionals placed them on the order and how their lives have been affected. Individual service users are capable of seemingly contradictory responses, simultaneously accepting and resisting the orders. This paper presents a typology of the range of responses. These responses are fatalism and resignation, dependency, ownership, bargaining, cooperation, resistance, and rejection. The study provides a model with which we can begin to understand how service users respond to compulsory community care where their options are legally constrained.

Advocacy, guardianship and the GP.

Australians have come to realise that they have a right to access high quality health care through their general practitioner. It is essential that people with cognitive impairments through intellectual disability, psychiatric disorders, senility or brain damage are not denied equity of access through their inability to seek medical attention. Those who cannot make reasonable decisions or who cannot understand and give legal consent to operative procedures may need to have a guardian appointed to protect their rights. In other situations an advocate may be appointed if the person's rights are in jeopardy. The general practitioner is often the first person to become aware of the needs of disabled people and is well placed to intervene to ensure the protection of their rights. This includes the right to good health care.

Non-consensual sterilization of the adult with learning disabilities.

Community nurses may be asked for advice on sterilization operations for adults with learning disabilities by worried parents/carers. This article sets out the legal position advocated by the English courts. Sterilization for adults with learning disabilities is generally non-consensual. The courts cannot consent on behalf of the adult but can rule on the lawfulness of the operation. Cases need not be brought before the court when the operation is to be carried out to treat a specific menstrual malady and where sterilization is an incidental result. However, the Law Commission (1995) has set guidelines which recommend that such operations require a certificate from an independent medical practitioner. In operations where the sole purpose is contraception the courts will always need to be involved. Their decision on the lawfulness of the operation will be based on what is in the person's best interests which in turn will be determined by reference to standards set by a responsible body of medical practitioners.

PIP: Sexual sterilization for women with learning disabilities raises complex social, ethical, moral, and legal issues. In recent years, the English courts have attempted to move away from discredited eugenic theories and to give careful consideration to the right to reproduce. This article addresses the legal implications in England of performing a sterilization procedure on an adult with learning disabilities without her consent. Such requests tend to emanate from parents or caregivers. One of the roles of the court is to decide who, if anyone, has the power to consent on behalf of a person with a learning disability with insufficient understanding to make treatment decisions. A parens patriae jurisdiction allows the courts to act for the protection of those who cannot care for themselves, but it is unclear whether this continues after 18 years of age. If it can be demonstrated that sterilization is in the person's "best interests" and is carried out to prevent deterioration of physical or mental health, this may be argued as necessary treatment and therefore lawful without consent. Determination of whose "best interests" are at stake--the learning disabled woman's or her caregivers--remains problematic. If there is a therapeutic reason for the sterilization, the case may not need to be brought before the courts. If there is no therapeutic reason, the courts will rule on the lawfulness of the operation but cannot consent on behalf of the adult. Sterilization should not be regarded as the only solution to the contraceptive needs of the learning disabled; sex education and other contraceptive methods merit careful consideration.

Health management and patients who lack capacity: forms of guardianship in European health policy.

The focus of healthcare debate has in recent years shifted from doctors and healthcare professionals in general to patients and the principle of patient self-determination. Patient competence therefore plays an increasingly central role in the legal framework of many Europeans countries. Consequently, healthcare policy has to address the possible repercussions of a non-systematic approach to cases of patient incapacity. The diverse nature of the experiences of the mentally or physically disadvantaged clearly raises problems for the healthcare professional. In this setting, we examine Italy's Law no. 6/2004 from a comparative perspective, in particular analysing legislation in the same area from Spain, France, Great Britain and the Netherlands.