Consenting to medical treatment and research : a comparative analysis focusing on certain vulnerable groups

Abstract

This dissertation sought to give an overview of the different systems employed by certain countries, used to protect those who are unable to consent on their own behalf and compare them to the situation under Maltese Law. The concept of informed consent, endowing patients with autonomy and self-determination was analysed. Malta was seen to lack a thorough definition of both informed consent and capacity. Maltese case-law on the subject of informed consent in general was analysed, though none were found specifically relating to vulnerable groups. The systems employed for court intervention or the appointment of legal guardians for vulnerable adults were outlined and found to be influenced by either the best interest model or the representational mode. A look was also had at the advance planning methods available, by which competent persons plan ahead in cases of future incapacity. A whole chapter focused on minors’ capacity, with a particular focus on UK law, since it transpired that they have vast case-law and specific criteria. Malta was found to base minors’ decision-making capacities on age, and no account is taken of the minor’s actual intellectual capabilities. International Conventions and Guidelines were outlined, as well as a discussion of the human rights elements pertaining to medical consent. A constant trend emerged, that while every person has a right to refuse treatment, this is often balanced against the interests of society. It was also established that the vulnerability of the victim reduced the threshold of severity which must be met in order for there to be a violation under the Convention. Finally, Maltese Law on the subject was analysed and gaps were established. It was shown that while the protection of vulnerable persons’ autonomy has greatly improved in recent years, especially with the importance placed on their opinion, there still exists a great need for improvement in order for their autonomy to be safeguarded.