Rights, empowerment and medical consent. The impact of article 12 of the United Nations Convention on the rights of persons with disabilities
| Autor | Adrian D. Ward |
| Cargo del Autor | International specialist in law for people with cognitive and volitional impairments Former Consultant to Council of Europe Expert Adviser, Centre for Mental Health and Capacity Law, Edinburgh Napier University (Scotland) |
| Páginas | 367-375 |
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Capítulo VI
RIGHTS, EMPOWERMENT AND MEDICAL CONSENT.
THE IMPACT OF ARTICLE 12 OF THE UNITED NATIONS
A D. W
International specialist in law for people with cognitive and volitional impairments
Former Consultant to Council of Europe
Expert Adviser, Centre for Mental Health and Capacity Law, Edinburgh Napier
University (Scotland)
A
It is a fiction to address issues of medical consent, and indeed issues generally of capability
to act and decide with legal effect, in terms of the absolutes of complete capacity and complete
incapacity. Occasionally a disastrous event can cause sudden complete incapability. More often
partial, and frequently progressive, impairments of relevant capabilities occupy the wide area of
reality between those fictional extremes. There is a danger that in practice that space is filled
with a presumption of incapacity. Modern human rights principles demand that the space be
filled with techniques, including new techniques, supportive of the exercise of legal capacity.
In this chapter I take some apparently simple concepts, develop them, and
explore what happens when we combine them. The initial concepts are medical
consent; the Council of Europe principles of autonomy and self-determination;
and the apparently straightforward requirements of Article 12 of the United
Nations Convention on the Rights of Persons with Disabilities (“the Disability
Convention”).
Firstly, medical consent. In January my doctor sent me to a nurse for a routine
blood sample. To take it, she had to insert a needle into me. To do that without my
consent would have been an assault. Did I expressly consent in words? No. The
nurse knew that I had previous experience of this. I just rolled up my sleeve and
offered my arm. That was sufficient implied consent.
When can a medical intervention properly take place without express
consent of the patient? The following possibilities, with various names, and often
overlapping, appear in most legal systems:
• Impliedconsent of the patient, as in my example. Implied consent, if
sufficiently clear, can have advantages. It would have been equally valid if I
* Paper (excluding footnotes and Appendix) delivered 20th September 2018.
This paper prepared 24th September 2018.
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