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Medical Treatment and Expression of the Consent of the Elderly Not Able to Consent
Transcript of Medical Treatment and Expression of the Consent of the Elderly Not Able to Consent
The balance of the elderly people's dignity and scientific and medical progress
Both medical treatments and the expression of the ability of elderly people to express their consent are issues arising in two areas
Article 6.3 of the European Convention on Human Rights and Biomedicine: ''
A mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative, or an authority or a person or body provided by law"'.
The ECtHR: Glass v. United Kingdom
The European Convention on Human Rights and Biomedicine in the European Case law
The application of the European Convention on Human Rights and Biomedicine and the references to the case law concerning elderly patients is still far from achieving significant results. However, it is highly esteemed by scholars, institutions and operators, through which it could reach a significant improvement to be effective for a proper treatment of the elderly
According to the Explanatory Report of the Convention, physicians are not always bound to respect the opinion of the incapable person's legal representative
The problem of consensus to medical treatment of elderly patients
"the best interest
of the person",
even if this
in a different way
from the patient's
European Court of Human Rights case law
Relationship between ECHR and Biomedicine Convention
Refusal of hospitalization
Refusal to receive a drug or a medical treatment
Refusal of force-feeding (i. e. PEG tube)
Refusal of tracheostomy (i. e. creation of a surgical airway in the cervical trachea and placing a cannula externally into it)
Refusal of the introduction of the cannula
Refusal of transfusion
In common law legal culture, the concept of self determination is deeply rooted:
Schloendorff v. New York Hospital
The Convention on Human Rights and Biomedicine constitutes the first (and at the moment the only) attempt to establish a binding European legal instrument that covers the core areas of medicine and scientific research, establishing a "minimum standard level" of human rights protection in biomedical treatments in Europe.
According to the recent case law of the ECtHR, it is possible to argue that the provisions of ECHR constitute a kind of European Common Law in the field of fundamental Rights.
Medical Treatment and Expression of the Consent of the Elderly Not Able to Consent: A comparative Analysis of the Case Law in the Countries of the Council of Europe
by Elena Falletti
In continental Europe medical paternalism
has experienced more conceptual resistence
because the doctor was the only one able for competence and authority to decide
concerning the patient's therapies, whose
only goal was his or her recovery
The purpose of the Article 1 of the European Convention on Human Rights and Biomedicine is: "protect the dignity and the identity of all human beings and guarantee everyone respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine
According to Article 2: The interests and welfare shall prevail over the sole interest of society or science.
According to the principle of self-determination, the patient has the right to participate in decision-making
in his or her own interest.
If the patient is no longer able to take part in the
decision-making process, the advanced instructions or information provided by his or her legal representatives
must be arranged for his or her protection