Rechtliche Besonderheiten bei der Behandlung minderj�hriger Patienten

Abstract

According to current jurisdiction any intervention of the physical integrity of the body, even medical treatment and the administration of medication, constitutes a physical injury. The legal authority for this primarily comes from the consent of the patient. The problem for the medical doctor is whose consent is necessary when a patient is a minor. According to the jurisdiction and the literature, the consent of a minor to medical treatment is a legally binding decision not dependent on reaching the age of majority. Nevertheless, according to the overwhelming opinion it can be assumed that minors under the age of 14 years old are not yet capable of consent. The authority for consent lies with the parents or guardians. Because children are normally only accompanied by one of the parents when visiting a doctor, in routine practice the 3-stage theory developed by the Federal High Court pays a deciding role. According to this theory, for routine cases the doctor can assume that one of the parents is basically a representative of the other; for more complicated or severe cases the doctor must satisfy himself that this is true. For patients over 14 years old, the doctor must ascertain whether the patient is capable of consent. Even though a 15-year-old patient for example, can possess the necessary power of judgement and therefore be considered capable of consenting to routine measures or simple interventions, such as taking a blood sample, the yardstick for higher-risk operations, even routine ones is much higher.