Foreign Experience of Legal Regulation of the Right of Minors to independently make a Decision on granting Consent for Medical Intervention

Solovyev Andrey Aleksandrovich ORCID: 0000-0002-4305-9286 Doctor of Law Deputy President of the Commercial Court of Moscow region; Professor at Kutafin Moscow State Law University; Professor at Moscow State Pedagogical University  107053, Russia, Moscow, Akademika Sakharova Avenue, 18 sportlaw2014@rambler.ru Other publications by this author

One of the legislative innovations in the system of administrative proceedings of our country was the addition of the Code of Administrative Proceedings of the Russian Federation (hereinafter – the CAS of the Russian Federation) Chapter 31.1. "Proceedings in administrative cases on the protection of the interests of a minor or a person recognized as legally incompetent, in case of refusal of a legal representative from medical intervention necessary to save life" ^[1].

Despite the fact that one of the fundamental human rights, which are the highest value, the Constitution of the Russian Federation calls the right to health protection and medical care (part 2 of Article 21, part 1 of Article 41) ^[2], a situation may arise when the consent of parents or other legal representatives is required for the treatment of a minor, who for various reasons They refuse to give their consent to the implementation of medical intervention in relation to such a person (part 2 of Article 20 of Federal Law No. 323-FZ of 21.11.2011 "On the basics of protecting the health of citizens in the Russian Federation") ^[3].

In this case, it is necessary to establish and audit state mechanisms for providing necessary medical care to a minor when it comes to protecting his interests related to the preservation of his life and health.

Noting the very significant guarantees of prompt consideration of such cases provided by the CAS of the Russian Federation (Articles 285.2, 285.3, 285.5), it is obvious that any delay in the implementation of medical intervention can entail serious, and often irreversible consequences.

A separate problem is the existing risks for doctors who take responsibility to carry out such an intervention without proper consent.

In view of the above, the foreign experience of securing out-of-court procedures for obtaining such consent is of significant interest.

In the present article, we will consider the legal regulation of the right of minors to independently make decisions regarding the provision of consent for medical intervention in certain European and North American states.

The reason for choosing the countries presented below was the availability of relevant legal regulation, as well as the high level of development of their legal systems.

At the same time, we appeal to countries belonging to both Romano-Germanic (Republic of Latvia, Republic of Serbia) and Anglo-Saxon (Canada, United States of America) legal families.

It should also be noted that in the domestic legal science there are practically no works devoted to the study of foreign (as well as domestic) experience on the subject under consideration ^[4-6]. And the purpose of this work is to fill this gap as much as possible.

At the same time, the author does not set himself the task of conducting an analysis of Russian legislation on the protection of citizens' health, which will be the subject of his future research.

Republic of LatviaArticle 13 of the Law of the Republic of Latvia of 2009 "On the Rights of Patients" (as amended) ^[7] provides for the possibility of independent decision-making by minors regarding their treatment, starting from the age of 14 (except in cases where delay endangers the life of the patient and it is impossible to obtain the consent of the patient or the person representing the patient, then the decision on medical intervention is made by the attending physician or a consultation of doctors).

According to part 3 of this article, if a minor does not consent to his treatment, but, in the opinion of the doctor, it meets his interests, such consent may also be given by the legal representative of the minor.

A minor patient also has the right to receive information from a practitioner that is understandable based on his age and maturity.

Republic of SerbiaAs a general rule, medical measures may be applied to a minor with the consent of his legal representative.

At the same time, a competent medical professional is obliged to provide an opportunity for a minor patient to participate in making a decision on consent to the proposed medical measure in accordance with his maturity and mental abilities.

A minor who has reached the age of fifteen and has the necessary mental abilities has the right to independently consent to medical intervention (subject to notification of a legal representative).

If a minor refuses to give consent, a competent medical professional is obliged to request the consent of a legal representative (Article 19 of the Law of the Republic of Serbia of 2013 "On the Rights of Patients" (as amended) ^[8]).

CanadaProvince of British Columbia

In accordance with part 2 of Article 17 of the Law of the Province of British Columbia of 1996 "On Minors" (as amended) ^[9], a minor has the right to independently consent to medical care, which is considered valid, and if it is available, there is no need to additionally obtain consent for medical care from a parent or guardian of a minor.

Medical care is understood to mean everything that is carried out for therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purposes.

The specified consent of a minor to medical care can be considered valid only if the person providing medical services has taken the following steps:

- explained to the child and came to the conclusion that the minor understands the nature, consequences and predictable (which can reasonably be assumed) benefits and risks of such medical care;

- made reasonable efforts to determine that medical care is in the best interests of the minor, and came to the conclusion that this is indeed the case.

Province of New BrunswickArticle 2 of the New Brunswick Provincial Law of 1976 (as amended in 2016) "On Consent of minors to medical intervention" (as amended) ^[10] provides that the legislation on consent to medical intervention in relation to adults is applicable to minors who have reached the age of sixteen.

At the same time , the specified medical intervention is understood as:

- surgical and dental treatment;

- procedures carried out for diagnostic purposes;

- procedures carried out in order to prevent any disease or deterioration of health;

- procedures that are auxiliary to any treatment.

A separate procedure is established with respect to obtaining consent for medical intervention in respect of persons under the age of sixteen.

Thus, article 3 of the above-mentioned law provides that the consent of a minor who has not reached the age of sixteen to medical intervention has the same force as if he had reached the age of majority, if, in the opinion of a qualified practitioner, dentist, nurse practitioner, midwife or nurse caring for a minor a minor is able to understand the nature and consequences of medical intervention and the planned medical intervention and procedure are in the best interests of the minor and his health and well-being.

United States of AmericaOklahoma State

In accordance with article 63-2602 of the Code of Laws of the State of Oklahoma (as amended) ^[11], regardless of other provisions of the legislation, the following minors have the right to provide consent to receive medical services independently, if:

- a minor is married, raising a child or has undergone the emancipation procedure;

- a minor has separated from his parents or legal guardian for any reason and does not receive support from them;

- a minor is or has been in a state of pregnancy, suffers from an infectious disease that is subject to registration, drug or alcohol addiction (however, independent consent applies only to the prevention, diagnosis and treatment of these conditions). A medical professional providing these medical services also undertakes to provide a minor with medical advice. If it is established that a minor is not or has not been in a state of pregnancy, does not suffer from any infectious disease, drug or alcohol addiction that is subject to registration, the medical worker undertakes in any case not to disclose the relevant information to the spouse, parent or legal guardian without the consent of the minor;

- a minor provides consent in relation to his child;

- the spouse of a minor provides consent on behalf of such a person due to his physical or mental disability;

- a minor needs emergency assistance due to conditions that, in case of delay necessary to obtain consent from a third party, pose a threat to his life or health (while prescribing medications or means for contraception purposes is not considered such);

- a minor has become a victim of violent acts of a sexual nature (however, such independent consent applies exclusively to forensic medical examination conducted by a qualified licensed medical professional).

If a minor makes a false statement that he has the right to consent, and a medical worker performs medical intervention in good faith on the basis of this incorrect information, the minor receives services in full without the consent of a parent or legal guardian and the medical worker is not responsible, except in cases of negligence or intentional harm. The consent of a minor is not subject to subsequent revocation or cancellation due to the minor.

A medical professional is obliged to make reasonable attempts to notify the parent or legal guardian of a minor about the necessary or provided treatment in case of intervention due to conditions that, in case of delay necessary to obtain consent from a third party, pose a threat to his life or health.

In all other cases, a medical professional has the right to inform the spouse, parent or legal guardian of a minor about the necessary or provided treatment, but is not obliged to do so.

The decision of the medical professional to notify is final, and the disclosure of relevant information is not considered defamation, violation of the right to privacy, violation of confidentiality or other legally liable violation.

Information about a minor received by a medical professional in the situation under consideration is not subject to transfer to another medical professional, educational institution, law enforcement agencies or their representatives, judicial authorities, government agencies or an official employer without the consent of the minor, except for the presence of special legal requirements or cases when the transfer of such information is necessary to protect the health of a minor and the public. It is allowed to use the relevant information for compiling statistical reports with the mandatory secrecy of the identity of a minor.

A medical worker is not criminally liable for the actions specified in the analyzed norm, except in cases of negligence and intentional harm.

According to the results of the study, it can be concluded that in the countries we have considered, a model has been implemented that provides for granting the right to minors (subject to a number of conditions) to independently make decisions on granting consent for medical intervention.

Sometimes, for example, an approach is used to analyze whether a minor has "Gillick's competence" and whether a child can consent to his own treatment without the need to obtain permission or consent from his parents.

The right of a minor under the age of 16 to consent to medical examination and treatment was recognized by the House of Lords of the United Kingdom in the case "Gillick v. the Health Authority of West Norfolk and Wisbeach and others", where the mother of girls under the age of 16 objected to the recommendation of the Ministry of Health allowing doctors to give advice on contraception and treatment of children without parental consent. The Court ruled that a child under the age of 16 has the legal capacity to consent to medical examination and treatment if he has sufficient maturity and intelligence to understand the nature and consequences of such treatment ^[12].

At the same time, in domestic legislation (as a general rule), minors over the age of fifteen or minors with drug addiction over the age of sixteen have the right to informed voluntary consent to medical intervention or to refuse it ((part 2 of Article 54 of Federal Law No. 323-FZ of 21.11.2011 "On the basics of protecting the health of citizens in Of the Russian Federation") ^[3].

In our opinion, the issue of the need to expand the opportunities of minors to give appropriate consent, in relation to the Russian Federation, requires separate study and in the process of this work, relevant foreign experience may well be taken into account.