uu.seUppsala University Publications
CiteExportLink to record
Permanent link

Direct link
Cite
Citation style
  • apa
  • ieee
  • modern-language-association
  • vancouver
  • Other style
More styles
Language
  • de-DE
  • en-GB
  • en-US
  • fi-FI
  • nn-NO
  • nn-NB
  • sv-SE
  • Other locale
More languages
Output format
  • html
  • text
  • asciidoc
  • rtf
Assessing capacity to decide on medical treatment: On human rights and the use of medical knowledge in the laws of England, Russia and Sweden
Uppsala University, Disciplinary Domain of Humanities and Social Sciences, Faculty of Law, Department of Law.ORCID iD: 0000-0002-7201-8619
2018 (English)Doctoral thesis, monograph (Other academic)
Description
Abstract [en]

To provide a valid consent to – or refusal of – medical intervention, a patient must be legally capable to decide. This dissertation evaluates and compares when the assessment of mental abilities to refuse – or consent to – somatic medical intervention is required in England, Russia and Sweden, and what criteria must be applied to assess the ability to decide about somatic medical interventions in these legal orders. Two standards are used for evaluation and comparison. These standards are consistency with scientific knowledge of the decision-making process, and compliance with the United Nations and the Council of Europe human rights law requirements. The evaluation and comparison of the national legal orders seek to highlight the solutions and the potential difficulties that the domestic legal systems face when they attempt to realise the two standards.

The analysis in the thesis indicates that the United Nations and the Council of Europe treaty bodies have chosen different approaches as to permissibility of capacity assessment procedures. It is argued that after adoption of the Convention on the Rights of Persons with Disabilities (CRPD), the capacity assessments of adults should not be allowed in healthcare.

A number of common problems within the selected legal systems are identified and analysed in the thesis. The question of when capacity assessments must start has not yet received much attention at national levels, which results in an absence of foreseeability and a possibility for discriminating against patients on the grounds of disability or health. The thesis highlights the fact that the national law requirements to draw a distinction between mental and somatic disorders/care are particularly problematic, and may lead to arbitrariness. The questions as to the legal classification of capacity assessment procedures (whether they are medical interventions or the collection of personal data), and accordingly, the legal status of refusal or absence of consent are also poorly foreseeable, which may lead to a violation of the patient’s right to privacy.

The analysis shows that the criteria for capacity assessments are regulated in a manner that inevitably leads to arbitrariness when deciding whether a patient can make healthcare decisions. It was shown that the criteria are interpreted differently by various actors, and no agreement as to the required level of performance is reached. It is also argued that capacity assessments rarely allow for achieving the goal of checking whether or not a patient can choose what to do with his or her own body.

Place, publisher, year, edition, pages
Uppsala: Department of Law, Uppsala University , 2018. , p. 701
Keywords [en]
legal capacity, mental capacity, decision-making capacity, capacity assessment, medical treatment, consent, refusal, right to privacy, right to life, discrimination, right to health, disability, decision-making, CRPD, ECHR, human rights, mental disorder, English law, Russian law, Swedish law, somatic care
National Category
Law (excluding Law and Society)
Research subject
Medical Law
Identifiers
URN: urn:nbn:se:uu:diva-361134ISBN: 978-91-506-2729-9 (print)OAI: oai:DiVA.org:uu-361134DiVA, id: diva2:1257439
Public defence
2018-12-12, Sal IV, the University Main Building, Biskopsgatan 3, Uppsala, 10:15 (English)
Opponent
Supervisors
Available from: 2018-11-21 Created: 2018-10-20 Last updated: 2018-11-21

Open Access in DiVA

No full text in DiVA

Authority records BETA

Litins´ka, Yana

Search in DiVA

By author/editor
Litins´ka, Yana
By organisation
Department of Law
Law (excluding Law and Society)

Search outside of DiVA

GoogleGoogle Scholar

isbn
urn-nbn

Altmetric score

isbn
urn-nbn
Total: 726 hits
CiteExportLink to record
Permanent link

Direct link
Cite
Citation style
  • apa
  • ieee
  • modern-language-association
  • vancouver
  • Other style
More styles
Language
  • de-DE
  • en-GB
  • en-US
  • fi-FI
  • nn-NO
  • nn-NB
  • sv-SE
  • Other locale
More languages
Output format
  • html
  • text
  • asciidoc
  • rtf