CIVIL MEDICAL LAW 2012/13. Prof. dr. Viktorija Žnidaršič Skubic

Transcription

1 CIVIL MEDICAL LAW 2012/13 Prof. dr. Viktorija Žnidaršič Skubic

2 - Right to prevent pregnancy - Right to abortion

3 RIGHT TO PREVENT PREGNANCY (RIGHT TO BIRTH CONTROL) 1. artificial pregnancy termination 2. other methods and means to manage fertility a) temporary (employing various contemporary means) b) permanent (sterilisation)

4 RIGHT TO PREVENT PREGNANCY (RIGHT TO BIRTH CONTROL) The Health Measures in Exercising Freedom of Choice in Childbearing Act - each individual: a right to advice on how to prevent pregnancy; - a right to be prescribed the most suitable means of birth control; - a professional medical question!

5 Minor female and Temporary Birth Control - minor female of sound mind; - physician: adequately ascertains that the minor possesses the required ratio and will to make her choice; - Physician s obligation to explain: - a) probable consequences for her health condition upon receiving a medication or undergoing a medical procedure; - b)the manner of execution, the probability of success and outcomes of taking specific birth control means, - c) potential risks and side effects, negative and/or unpleasant consequences of the planned medical procedure or usage of birth control means.

6 STERILIZATION - the physician must be delicate, - provide the explanation in direct contact with the patient, in full and on time, - when dealing with minor individuals, the physician must also be extra cautious to provide the explanation in an understandable manner and in accordance with the patient s ability to process information (Constitution, Article 56 and the Patient Rights Act Article 3, 3(3) and Article 8);

7 STERILIZATION - request of the individual; - at least 35 years old; - sound mind. Sterilisation can be carried out if the last two criteria are not met: due to health reasons. For a person who is not of a sound mind: request by parents or guardian with obligatory consent by the Centre for Social Work;

8 STERILIZATION - a minor person of sound mind: request to be sterilised by him/her self, but: the commission that decides on the question must acquire the opinion of the parents or the guardian; - the latter is not necessary if the minor already acquired disposing capacity; The sterilisation request is filed with the 1 st Level Commission for Artificial Pregnancy Termination; - the 2 nd Level Commission for Artificial Pregnancy Termination

9 STERILIZATION - sterilisation can only be carried out after a certain period of time has passed since it was approved; - 6-month period; - the time to thoroughly think through and consider his or her decision; - it is not used in cases when sterilisation is required for health reasons.

10 ABORTION General: - SLO legislation gives her the right to abortion, even though such a procedure is (medically and socially) an undesired measure of birth control; - problem: does the woman have the true freedom in making this kind of decisions? - deciding between two unpleasant outcomes: violent pregnancy termination and birth of an unwanted child. - abortion must be included among the means for regulating childbirth, as it is the only way to prevent giving birth after conceiving.

11 ABORTION - prevention should be prioritised at all times, - use of modern and reliable birth control means; - Researches: the number of performed abortions is inversely related to the use of modern birth control means;

12 ABORTION Legislation - Health Measures in Exercising Freedom of Choice in Childbearing Act; - combined solution : abortion is carried out on the request of the pregnant woman if the pregnancy has lasted for fewer than 10 weeks; - if the pregnancy last more than 10 weeks, abortion can only be carried out if the dangers from the procedure for her health and future pregnancies are outweighed the dangers to the pregnant woman and the child in case of continuing pregnancy and birth.

13 ABORTION - the late abortion - decided upon by the 1 st and 2 nd level Commission for Artificial Pregnancy Termination; - the decision-making procedure must be quick; - The 1 st Level Commission for Artificial Pregnancy Termination: a social worker and two physicians - The 2 nd Level Commission for Artificial Pregnancy Termination (the Complaints Commission): a social worker and three physicians; - all commission members must have appointed deputies;

14 ABORTION - After 20 weeks, medical professionals reject pregnancy termination, unless such a procedure is required to protect the life and health of the pregnant woman; - the legislator: opinion that a system of sc. indications for abortion ran contrary to the constitutional principle - abortion is a right of the woman, which can only be restricted due to health reasons;

15 Minor Pregnant or Pregnant Woman without Sound Mind - request by her parents or guardian; - no right to replace her will; - strictly personal decission - no representation possible; - they execute their duty to take care of the health and life of their daughter or protégée;

16 Minor Pregnant or Pregnant Woman without Sound Mind - the health care organisation: usually notifies the parents or guardian of that request, unless the girl acquired full disposing capacity before becoming of age: a) a minor female entered into marriage (after waiving the minor reservation, decided upon by a social care centre) b) has (according to a court decision in a non-litigious procedure) acquired full disposing capacity because she became a mother - Due to the Instructions to Execute the Health Measures in Exercising Freedom of Choice in Childbearing Act, a minor pregnant female is treated with special care with consideration of her family and social circumstances; - such treatment respects her personal decision, both regarding pregnancy termination as well as notifying the parents.

17 Minor Pregnant or Pregnant Woman without Sound Mind - the general rule: a child is not capable of consenting to a medical procedure until the age of 15; - this assumption can be challenged: a physician can, based on the child s maturity, state on a case-by-case basis that the child is capable of such consent. - a child who has reached 15 years is in principle able to give consent, but this assumption can also be challenged, as a physician can assess that this is not the case after examining the child s level of maturity; - these rules do not apply to the freedom regarding child bearing: it is regulated by a specific law, i.e. the Health Measures in Exercising Freedom of Choice in Childbearing Act; - it is lex specialis;

18 Minor Pregnant or Pregnant Woman without Sound Mind - a minor female of sound mind can independently and without parental/guardian/anybody else s cooperation request an abortion for herself; - parents cannot request abortion to be carried on their minor daughter of sound mind; - they also cannot prevent pregnancy termination if she wishes to carry it out; Why? - artificial termination of pregnancy is one of the most personal decisions an individual can make; - it is a major medical intervention into the girl s most personal good, her body;