Medical decision-making and children

Abstract

Pediatric medical decision making has been a matter of discussion for the last few decades. Generally, the currently prevailing viewpoints are that the children’s wishes should be heard and that children should be allowed to participate in medical decision-making according to their development. Those discussions do not only touch on ethical, legal and political matters, but are also based on empirical research. There are no simple answers to those large issues, especially the age limit at which children can be considered capable of giving informed consent. In that context, a balance needs to be struck between the protection of children’s interests and the respect for their “developing autonomy”. The first part of this article outlines the principle of autonomy that informed consent is based on, whereas the second part focuses on two concepts: that of parental permission and of assent of the child, both of which are well-known in the contemporary medico-legal realm. The term “assent” is commonly used in cases when individuals are not legally allowed to give informed consent but are capable of taking part in the process of medical decision-making. In the third part of the paper, three Croatian legal acts were analyzed in a context of the informed consent of the child: the Protection of Patient’s Rights Act, the Family Act and the Civil Obligations Act. The fact that several legal regulations, in particular the Protection of Patient’s Rights Act, the Family Act and the Civil Obligations Act, must be used in parallel when it comes to the issue of informed consent of a child, can be, legally speaking, quite confusing. Thus, such regulation may leave some doubts and difficulties in the immediate application, especially with regard to emergency medical interventions. In this regard, perhaps the fact of adopting a special law on the consent of children to medical procedures could be considered, or at least the provision within the Family Act or the Protection of Patient’s Rights Act, which uniformly summarizes all the above regulations.