Minors and informed consent: A comparative approach

European Journal of Health Law

Volumn 14, Issue 1, 2007, Pages 21-46

  Stultiëns, Loes ^a   Goffin, Tom ^a   Borry, Pascal ^a   Dierickx, Kris ^a   Nys, Herman ^a  

^a UNIVERSITY OF LEUVEN   (Belgium)

Author keywords

European Convention on Human Rights and Biomedicine; Informed consent; Minors

Indexed keywords

BIOMEDICINE; COMPARATIVE STUDY; CYPRUS; CZECH REPUBLIC; DENMARK; EMERGENCY CARE; ESTONIA; EUROPEAN UNION; GREECE; HEALTH CARE; HEALTH CARE SYSTEM; HUMAN; HUMAN RIGHTS; HUNGARY; INFORMED CONSENT; JUVENILE; LAW; LITHUANIA; MEDICAL DECISION MAKING; MEDICAL ETHICS; MEDICOLEGAL ASPECT; PATIENT RIGHT; PORTUGAL; REVIEW; SLOVAKIA; SLOVENIA; SPAIN; ADOLESCENT; ARTICLE; EMERGENCY HEALTH SERVICE; LEGAL ASPECT;

ADOLESCENT; EMERGENCY MEDICAL SERVICES; EUROPEAN UNION; HUMANS; INFORMED CONSENT;

EID: 34447515456     PISSN: 09290273     EISSN: 15718093     Source Type: Journal    
DOI: 10.1163/092902707X182788     Document Type: Review

References (50)

1. Please note that in this article we have only used "he/him" (unless it concerns a specific quotation), but of course it should also be read as "she/her".
2. R. Andorno, "The Oviedo Convention: a European framework at the intersection of human rights and health law", Journal of International Biotechnology Law, 2005, 138.
3. See § 42 of the Explanatory Report to the Convention.
4. See § 45 of the Explanatory Report to the Convention.
5. Personal communication of L. Prudil.
6. K. Souckova, National regulations on Ethics and Research in Czech Republic, 2003, 12. See also the Czech Civil Code articles 8 and 9: http://mujweb.cz/www/vaske/obcan1.htm.
7. Personal communication of L. Prudil.
8. Annual Report of the Czech Ombudsman, III General Observations, 2.4. Violation of parental obligation to have their child vaccinated www.ochrance.cz/.
9. H. Nys et al., "Patient Rights in the EU. Czech Republic", European Ethical - Legal Papers No 1, Leuven 2006, 19.
10. K. Souckova, o.c., 12.
11. As we have seen, § 766 (4) of the Law of Obligations Act 2001 only stipulates that information must be provided to the minor patient to a reasonable extent. It does not state that the opinion of the minor patient should be taken into consideration.
12. I. Kriari-Catranis, "Human Assisted Procreation and Human Rights - The Greek response to the felt necessities of the time", European Journal of Health Law, 2003, 272.
13. K. Meralou and E. Tragakes, "Development of Patients' Rights Legislation", European Journal of Health Law, 1999, 78.
14. M. Canellopoulou-Bottis, "Recent Developments in health law in Greece", European Journal of Health Law, 2006, 107-113.
15. K. Meralou and E. Tragakes, o.c., 76.
16. K. Meralou and E. Tragakes, o.c., 75.
17. K. Meralou and E. Tragakes, o.c., 75-76.
18. Personal communication of J. Sandor.
19. According to section 12 (2) of Act IV of 1959 on the Civil Code persons of 18 years are of age.
20. Personal communication of J. Sandor and Z. Tomka. This version of article 14 (2) has not been reflected in the translation of the Health Act to be consulted on www.ohchr.org/english/bodies.
21. Personal communication of J. Sandor and Z. Tomka. According to Z. Tomka this rule can be found in paragraph 6 of article 16 of the Health Act. Also in this case this version of article 16 does not correspond with the translation of the Health Act to be consulted on www.ohchr.org/english/bodies which does not provide for a subsection 6.
22. T. Birmontiene, "Changes in the Lithuanian Health Law and the influence of the Netherlands Civil Code", European Journal of Health Law, 2002, 386.
23. T. Birmontiene, o.c., 387-388.
24. According to the personal communication received from A. Kabisaitis, article 8 § 1 of the Law on the Rights of Patients does provide for a medical majority rule as of 16 years as it reads "Patients as well as those aged between 16 and 18, may be treated or provided any other healthcare and/or nursing only with the consent of the patient." This version of article 8 § 1 has not been reflected in the official translation of the Law on the Rights of Patients and Compensation for the Damage to their Health of 1996 published on the website of the Lithuanian Parliament ("Seimas") to be consulted on: http://www.lrs.lt.
25. T. Birmontiene, o.c., 393.
26. In view of the Civil Code the definition of a "minor patient" in the Law on the Rights of Patients is now to be read as not heaving reached the age of 16.
27. G. De Oliveira, "Some improvements in the Portuguese medical law", Yearbook of European Medical Law 2005, The Institute of Medical Law, Lidingö.
28. Personal communication of P. Lobato de Faria.
29. Article 38.3 of the Portuguese Criminal Code: "Consent is effective only if it has been given by someone who is over 14 years old and has the necessary discernment to judge its meaning and range, at the moment it is given". See www.verbojuridico.net. There is, however, a proposal pending at the Parliament to change the age limit of 14 into 16.
30. The regulation of parental responsibilities underwent alterations through the 1977 reform of the Portuguese Civil Code which established a new concept of the family and consequently of the parent-child relationship which led to the imposition of a positive duty upon parents to respect their child as is reflected in article 1878 paragraph 2 of the Portuguese Civil Code. (See: G. De Oliveira and R. Martins, "National Report - Portugal" as published on http://www2.law.uu.nl/priv/cefl/Reports/pdf2/Portugal.pdf ).
31. Personal communication of G. De Oliveira and A. Pereira.
32. A. Bubnov-Skoberne, "EU accession and the rights of insured persons in Slovenian public health insurance", in, A. Den Exter (ed.), The Budapest Meeting, o.c., 51.
33. Personal communication of J. Trontelj.
34. A. Selih, "Implementation of Directive 95/46/EC in Slovenia", in D. Beyleveld et al., Implementation of the Data Protection Directive in Relation to Medical Research in Europe, Ashgate Publishing, 2004, 355.
35. A. Selih, o.c., 351.
36. J. Trontelj and D. Korosec, National Regulations on Ethics and Research in Slovenia, European Communities 2003, 10 (see: http://ec.europa.eu/research/science-society/pdf/sl_eng_lr.pdf ).
37. J. Trontelj and D. Korosec, o.c., 7.
38. Personal communication of J. Trontelj.
39. M. Requejo, "Legal Analysis of the Spanish Basic Law 41/2002 on the Autonomy of the Patient and the Rights and Obligations with Regard to Clinical Information and Documentation", European Journal of Health Law, 2003, 258.
40. M. Requejo, o.c., 261.
41. According to the Spanish Civil Code a minor of more than 16 years may in certain cases be emancipated and take decisions on certain issues independently. In exceptional cases emancipation may be obtained even as from the age of 14 (e.g. for reason of mariage). See: M. Requejo, o.c., 263.
42. According to M. Pérez-Cárceles et al. "[. . .] it is admitted that the intellectual and the emotional ability of the adolescents to understand the implications of treatment is possible and therefore their consent could be valid opinion, despite being under 16.": M. Pérez- Cárceles and others, "Primary care confidentiality for Spanish adolescents: fact or fiction?", Journal of Medical Ethics, 2006, 329.
43. M. Pérez-Cárceles et al., o.c., 332.
44. M. Requejo, o.c., 263.
45. Whether Hungary also belongs to this category, with an exception in two specific cases where an age level of 16 years is applicable, is not clear.
46. We must point out that the situation with respect to Hungary is not completely clear: as we have seen above it is not clear whether the age limit of 16 years is only applicable to the right not to be informed and the right to designate a person who is allowed to consent or to refuse on his behalf or whether this age limit could be extended to other/all health care decisions of the minors concerned.
47. It goes beyond the scope of this article to investigate why in these countries one has opted for these specific age levels.
48. H. Nys et al., "Patient Rights in the EU. Denmark", European Ethical - Legal Papers No 2, Leuven 2007,17.
49. K. Meralou and E. Tragakes, o.c., 75-76.
50. R. Andorno, "The Oviedo Convention: a European framework at the intersection of human rights and health law", Journal of International Biotechnology Law, 2005, 135.