FAMILY LAW

Family Law

Family Law

Q1. What extent children have the right to refuse medical treatment and whether the current legal position might change?

Problems associated with the consent for medical treatment of children are clearly constitutional conflicts related to enforcement and the limits of the fundamental rights of children and the rights and duties of parents. Several child rights may be affected by treatment (e.g., life, privacy) so that such situations should be subject to the ordinary limits to restrictions on fundamental rights. The substitution of the will of the child by their parents (not their legal representatives) is constitutionally legitimate to the extent that undergoes substantial limitations (e.g., evolutionary principle, the best interests of the child) and procedural (e.g., child's right to be informed). Proposed rules for resolving disagreements between the child, parents and doctors (Gillespie 2002, 5).

Discussion

Every patient has the right to refuse treatment. The patient must be informed completely and accurately about the risks runs because of his position of denial. This way of acting is perfectly acceptable if the patient refuses any treatment: decision belongs to him. There is therefore, no physician's obligation to carry out treatment if want to put in work. It is a principle affirmed in the Lisbon Declaration on the Rights of patient, adopted by the World Medical Association in 1981.

The overall situation of children and adolescents (hereinafter either "children") in law has changed significantly in recent decades. Thus the old view that the child conceived as an incomplete individual or in the process towards highest personification, gradually replaced by the recognition of its full rights of the subject. Consequential, in respect of medical treatment, little by little, thanks to the influence of comparative law, we come to understand that the child has much to say and even to decide.

Notwithstanding the foregoing, an archaic perspective survives in our legal system, which continues to regard children as simply incapable of giving valid consent, even for such personal decisions as those concerning health. Although Chile has adopted several international instruments that should lead to a change in this area (e.g., Convention on the Rights of the Child, the "Convention" Declaration of the Rights of the Child hereinafter "DDN"), the date this method has proved wholly inadequate to bring about the inevitable evolution. Worse still, compared to backlog of legislation and legal doctrine, physicians have chosen to develop some practices that ignore the legal standards.

Clearly, this situation is unsatisfactory and confusing. That does not clearly define rights and justice, duties and obligations of children, parents, physicians and the state. While there are several bills on these subjects. We believe that part of the problem is unavoidable in the absence of a constitutional framework applicable to the species. Indeed, it is clear that we are dealing with a topic closely related to principles, rights, and in general, constitutional content, including fundamental rights. However, constitutional doctrine, has remained on the sidelines, an issue which has resulted in the extraordinary development of fundamental rights in contemporary legal systems, their requirements, ...