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Denish_VanHeuvel-1 - Journal of Law Medicine and Ethics...

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Journal of Law, Medicine and Ethics Summer, 2000 Articles MATURE MINORS SHOULD HAVE THE RIGHT TO REFUSE LIFE-SUSTAINING MEDICAL TREATMENT Melinda T. Derish and Kathleen Vanden Heuvel Introduction We focus our discussion on chronically ill children who are potentially mature minors (minors with decision making capacity), because this subgroup of pediatric patients has the best opportunity and reason to make their own decisions about life sustaining medical treatment (LSMT). We begin with a demonstration of how LSMT can be inflicted upon a mature minor, despite the best intentions of her parents and physician. A Chronically ill child's end-of-life medical care Consent to a potentially fatal treatment Despite the centrality of informed and voluntary consent to the ethical medical treatment of a patient, there are several obstacles to its application in the context of the mature minor struggling with a potentially fatal disease. At common law minors do not have the legal capacity to consent to medical treatment. Instead, the law generally presumes that only parents have the authority to make medical decisions for their minor children and that in doing so they will act in their child's best interest. In addition to the absence of her legal right to give informed consent (or its counterpart, informed refusal), neither our hypothetical patient nor her parents were given the opportunity to fully comprehend and weigh the treatment options related to the possibility of dying. Patients with life-threatening diseases often do not have frank discussions with their physician about what will happen if the treatment options fail and death is likely. Advance directives Advance directives allow adults to continue to exercise their right to secure or avoid medical technology if they become unconscious or otherwise incapable of making health care decisions. The role of an advance directive is to provide guidance to a patient's surrogates and health-care providers with regard to the personal decisions that the patient would have made about their own end-of-life care. Minors are presumed incompetent The adult's right to execute an advance directive is derived from the legal presumption that adults are competent to make their own decisions about activities that affect themselves, including decisions to consent to or refuse LSMT. Those who would force an adult patient to receive unwanted medical treatment have the burden of proving that a patient is incompetent rather than the patient having to prove that he is competent. Minors, however, are in precisely the opposite position. At common law they are presumed legally incompetent to give their own consent to medical treatment. Although the common law presumes that minors have the same right to bodily integrity as adults, only their parents are allowed to exercise this right. Parental authority to make medical decisions for their children is also based upon a general, legal
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