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THE UNDERAGE ADOLESCENT: REGULATIVE AND MEDICO-LEGAL ASPECTS

THE UNDERAGE ADOLESCENT: REGULATIVE AND MEDICO-LEGAL ASPECTS. Prof. Tito Livio Schwarzenberg. ADOLESCENT CARE UNIT. University “La Sapienza” - ROME. PRINCIPAL REGULATORY AND MEDICAL-LEGAL “CONCERNS” WITHIN THE ADOLESCENTOLOGY AMBIT.

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THE UNDERAGE ADOLESCENT: REGULATIVE AND MEDICO-LEGAL ASPECTS

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  1. THE UNDERAGE ADOLESCENT: REGULATIVE AND MEDICO-LEGAL ASPECTS Prof. Tito Livio Schwarzenberg ADOLESCENT CARE UNIT University “La Sapienza” - ROME

  2. PRINCIPAL REGULATORY AND MEDICAL-LEGAL “CONCERNS” WITHIN THE ADOLESCENTOLOGY AMBIT • IDENTIFICATION OF THE MOST QUALIFIED FIGURE IN ORDER TO TAKE CARE OF ADOLESCENTS; • RECOGNITION OF THE RIGHT BELONGING TO THE UNDERAGE ADOLESCENT RELATING TO THE PROTECTION OF THE HEALTH; • DEFINITION OF LIMITS, RIGHTS AND DUTIES OF THE DOCTOR WITH REFERENCE TO THE ASSISTANCE PROVIDED TO UNDERAGE ADOLESCENTS, WITH PARTICULAR ATTENTION TO THE “PROFESSIONAL RESPONSIBILITY”.

  3. ASPECTS (SECTORS OR ELEMENTS) OF THE ADOLESCENCE AGE 1) SOMATIC-BIOLOGICAL 2) PSYCHOLOGICAL 3) COGNITIVE-CULTURAL 4) SOCIO-ECONOMIC 5) JURIDIC-LEGAL

  4. When does adolescence come to an end from the juridical-legal point of view? In the order of the Civil Law, it is already a well-known fact that underages are precluded from every “capability to act”, that is every aptitude to autonomously carry out juridical acts in their interest, until they reach their majority (art. 2-316 CC). Anyway, in particular cases also an age lower than eighteen is liable to be of a great, juridical importance.

  5. THE PROFESSIONAL RESPONSIBILITY OF THE ADOLESCENT PRACTITIONER • 1) IN THE ORDER OF THE CIVIL/CRIMINAL LAW FOR PRESUMPTIVE/REAL DIAGNOSTIC AND OR THERAPEUTIC MISTAKES; • 2) FOR POSSIBLE DIFFERENT EVALUATIONS OF THE DOCTOR’S CONDUCT FROM THE POINT OF WIEV OF THE UNDERAGE ADOLESCENT AND THE PONIT OF WIEV OF THE LEGAL REPRESENTATIVE OR LEGAL GUARDIAN; • 3) IN RELATION TO THE CONTROVERSIAL CAPABILITY OF THE UNDERAGE TO GIVE HIS/HER AUTONOMOUS AND VALID CONSENT TO RECEIVE TREATMENT.

  6. WHAT ARE THE MOST SENSITIVE ISSUES? 1)SEXUAL BEHAVIOUR 2)DRUG-ADDICTION 3)PSYCHO-EMOTIONAL DISORDERS 4)SCHOOL PROBLEMS 5)EATING DISORDERS

  7. DOCTOR-PATIENT RELATIONS Contractual relation …underages us such would not be allowed to draw up a valid agreement!

  8. If the underage’s consent to the sanitary intervention IS NOT LEGALLY VALID it takes shape on the part of the doctor: A peculiar act of aggression and/or abuse!!!

  9. UNDERAGE ADOLESCENTS AND INTERNATIONAL REGULATIONS INTERNATIONAL REGULATIONS MOSTLY CONCERN SOLEMN AND AUTHORITATIVE STATEMENTS OF INTENTIONS, BUT AS A GENERAL RULE DO NOT ASSUME THE FORCE OF LAW.

  10. CONVENTION ON THE RIGHTS OF THE CHILD “CRC” (N.Y. 20-XI-1989) Article 12/1: States Parties shall assure to the child who is capable of forming his or her views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. Article 13/1: The child shall have the right to freedom of expression; this right include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or though any other media of the child’s choice.

  11. CONVENTION ON HUMAN RIGHTS AND BIOMEDICINE (OVIEDO 4-IV-1997) Article 6/2: Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law. The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity.

  12. CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (NICE 7th dec. 2000) Article 24(The rights of the child) “Children shall have the right to such protection and care as is necessary for their well-being. Theymay express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

  13. UN RESOLUTION ON THE RIGHTS OF THE CHILD “OMNIBUS RESOLUTION”(18th November 2009) III Article 24: (The right of the child to express his or her views freely in all matters affecting him or her) “Recognizes that the child who is capable of forming his or her views should be assured the right to express those views freely in all matters affecting him ort her, the views of the child being given due weight in accordance with his or her age and maturity, referred to in the present resolution as “the right to be heard”. III Article 32:“Recognizes that the full enjoyment of the right of the child to be heard and to participate requires adults to adopt an appropriate child-centred attitude, listening to children and respecting their rights and individual points of view”.

  14. UNDERAGE ADOLESCENTS IN THE CONSTITUTION OF THE ITALIAN REPUBLIC ART. 2 = THE REPUPLIC RECONGIZES AND GUARANTEES THE INVIOLABLE RIGHTS OF HUMAN BEINGS… ART. 3 = ALL THE CITIZENS HAVE SAME SOCIAL DIGNITY AND ARE EQUAL BEFORE THE LAW….. ART. 30 = RIGHTS AND OBLIGATIONS OF THE PARENTS CONSIST IN PROVIDING FOR, EDUCATING AND TEACHING THEIR CHILDREN …… ART. 32 = THE REPUBLIC PROTECTS THE HEALTH…. ART. 33 = THE REPUBLIC SAFEGUARDS THE CHILD LABOUR.......

  15. UNDERAGE ADOLESCENTS IN THE CONSTITUTION OF THE ITALIAN REPUBLIC THE SMALL REFERENCE TO UNDERAGES IN THE ITALIAN CONSTITUTIONAL CHART, FAR TO BE AN EXPRESSION OF INSUFFICIENT CONSIDERATION TOWARDS CHILDREN AND ADOLESCENTS, REPRESENTS INSTEAD THE WILL OF THE LEGISLATOR TO LET UNDERAGES’ PROTECTION CONVERGE ON THE PROTECTION THAT MUST BE ASSURED TO ALL THE CITIZENS BY RECOGNIZING THEM THEIR RIGHTS AND FUNDAMENTAL LIBERTIES.

  16. UNDERAGE ADOLESCENTS IN ITALIAN CIVIL LAW AT 18years = ACCESSION TO THE “CAPABILITY TO ACT" (LEGAL AGE); AT 16years= POSSIBILITY TO CONTRACT A MARRIAGE, TO RECOGNIZE ILLEGITIMATE CHILDREN, TO ASK FOR THE PATERNITY’S DISOWN, TO CONTEST THE RECOGNITION; AT 14years= POSSIBILITY TO INTERVENE IN HIS/HER INTEREST AND ON BEHALF OF MAINTAINING THE FAMILY UNITY; AT 12years= POSSIBILITY TO INTERVENE IN THEME OF ADOPTION; AT 10years = IMPORTANCE IN THEME OF GUARDIANSHIP.

  17. The fact remains that…… ….the achievement of the age of 18 can’t represent, as such, a sharp transition from a condition of total legal disqualification to a sudden legal status of complete consciousness and ability. The biological and psycho-social reality is in fact characterized by a continuous flow of evolutionary phases that follow one another and that the legislator, in some way, had to take into consideration.

  18. Underage adolescents in the Penal Law. - Juridical and bioetichal issues In the order of the Italian Penal Law the adolescents, and anyhow the underages, are object of a particular attention under the twofold aspect both of a more indulgent treatment while they commit a crime and of a greater severity towards those that abuse them. • The fundamental principle is that underages younger than 14 are never indictable (art. 97 CP) and that underages between 14 and 18 are indictable only if, according to the circumstances, the achievement of the mental capacity is demonstrate; anyway the penalty is reduced by a third (art. 98 CP).

  19. UNITED NATIONS STANDARD MINIMUM RULES FOR THE ADMINISTRATION OF JUVENILE JUSTICE (“THE BEIJING RULES” 29th November 1985) - Art. 1.2Member States shall endeavour to develop conditions that will ensure for the juvenile a meaningful life in the community, which, during that period in life when she or he is most susceptible to deviant behaviour, will foster a process of personal development and education that is free from crime and delinquency as possible.Art 5.1The juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence.Art. 7.1Basic procedural safeguards such as the presumption of innocence, the right to be notified of the charges, the right to remain silent, the right to counsel, the right to the presence of a parent or guardian, the right to confront and cross-examine witnesses and the right to appeal to a higher authority shall be guaranteed at all stages of proceedings. Art. 8.1The juvenile’s right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling.

  20. Law N° 66 - 15.02.1996 “Rules against sexual assaults” Most significant impacts on the practice of the Adolescent Medicine • The matter regarding the possibility for an underage adolescent to dispose of his/her self for sexual purposes is, from a certain point of view, comparable to the matter regarding the capability to dispose of one’s own body for cure/treatment purposes. • The new expression “sexual acts” reported by he law assumes a broad sense because it includes all the acts aimed to a sexual satisfaction and it largely involves, therefore, the doctor’s responsibility in expressing a judgment. • The doctor that in occasion of a sanitary service finds out from the underage that he/she has been abused, is under obligation to transmit the related medical report to the Judicial Authority.

  21. Law N° 66 - 15.02.1996 “The three blocks related to the age as personal detail” Most significant impacts on the practice of the Adolescent Medicine • 13 years old: the underage is not indictable if he/she makes sexual acts with another underage, who turned thirteen, if the difference of age between the two subjects is not greater than three years; • 14 years old: except for the above mentioned assumption, and under the age of fourteen, underages are not considered able to give a consciousness (and then valid) consent; therefore, sexual acts made with/to a person younger than fourteen are always considered as violent acts; • 16 years old: the nullification for giving a valid consent is extended to sixteen-years-old, when the sexual act is made by/with a person towards the underage has affective ties or, anyway, has a relation characterized by moral, psychological or material subjection (parents, adoptive parents, tutors, educators, teachers, wardens, cohabitings).

  22. LAW 194 - 22.05.1978Rules for the social protection of the maternity and for the pregnancy’s voluntary interruption (Art. 2) “…….. giving following medical prescriptions, in the sanitary structures and in the advisory centers, of the necessary middles to reach the freely chosen purposes related to the procreation, is allowed also for underages…. The above mentioned article confirms, therefore, the possibility, on the part of the underage, to freely assume (that is autonomously and independently from any outside conditioning) a personal orientation towards the matter of procreation and, at the same time, a sufficient judgment maturity is implicit recognized to the underage adolescent, so to let him/her take free and responsible choices.

  23. A very controversial bioethical and legal-medical issue: …the underage’s consent to receive treatment!

  24. THE INFORMED CONSENT We can generally define the term “consent” a juridical valid permission, through which a person gives to another person the power to act on an own personal available good. In the order of medicine the term “informed consent” means the acceptation of a proposal and the consequent free and voluntary authorization to receive treatment and or to undergone an operation: the patient gives the authorization in an explicit way only after having been properly informed.

  25. ASSENT ACCEPTANCE AND/OR APPROVAL OF AN ACTION AND/OR A DECISION ALREADY TAKEN BY OTHER PEOPLE

  26. Informed consent or informed “permission”? The fact remains that the term consent is referred to an authorization to act on behalf and in the interest of the agreeable subject but only on an own personal available good; therefore, the consent expressed by a parent or a tutor on behalf of an underage should be more properly defined as informed permission (suggested by the American Academy of Paediatrics) and not as informed consent.

  27. …The consent can be expressed by an adolescent…. 1.Only after reaching his/her majority; 2.Over the age of 14 and after the acquisition of the mental capcity; 3.Also between the 14° and the 18° year of age provided that his/her critical and decision-making maturity is verified.

  28. Another very important bioethical and legal-medical issue: THE PROFESSIONAL SECRET: Legitimacy or not legitimacy to transfer to the adolescent’s parents what he/she confided or what the doctor found out about him/her.

  29. The professional secret towards the underage patient Except the so called “right reasons” for the professional secret’s disclosure (represented by obligatory medical reports, declarations and certificates) it can be reasonably considered that the doctor is compelled to keep the professional secret also with respect to the adolescent patient, this also irrespective of the valuation of the adolescent’s qualification in giving a valid consent to receive treatment.

  30. PROFESSIONAL SECRET IN ADOLESCENT HEALTH CARE Medical practitioners have a legal and ethical duty not to disclose health information without the consent of the patient concerned. The duty ensures that patients are able to discuss their health freely with their doctor, safe in the knowledge that the information will remain confidential………….The various laws do not distinguish between adult and underage patients…….a young person who has sufficient understanding and intelligence to a particular medical treatment should have the right of confidentiality with the respect to that treatment…. In support of this view, it is argued that the preservation of confidentiality is based not solely on the recognition of the autonomy of certain young people. It is also founded on young people’s right and need for privacy, which should not be less than those of adults…..Professional secret obliges the entire assisting Health Team. This shall not be exempted from the duty of secrecy even the patient dies. CONSENT TO MEDICAL TREATMENT BY YOUNG PEOPLE – Sydney, 17 may 2004 – Oxford University Press

  31. Therefore………….. In the long time-frame of the adolescence’s age, the legislator had to take cognizance that also for the juridical component (such as for the somatic, psychological, cognitive and social component) the acquisition of a complete maturity is achieved through a complex but uninterrupted evolutive process, of which also all the possible middle phases have to be properly considered, accepted and enhanced.

  32. CONCLUSIONS Seeing that the health is a fundamental right of the individual and a prior interest of the society, the underage’s will must prevail exactly in this ambit, while the parents’ duty has to remain – so to speak – integrative/educational. Only if the underage is in state of natural inability, or rather he/she is so young that it can’t be reasonably considered that he/she has sufficient judgement maturity, it is not only permitted but necessary that the parents act on him/her behalf.

  33. The fact remains that the doctor’s burden in order to establish time by time the effective capability to decide of the underage patient represents an unavoidable and inalienable responsibility: in this direction are in fact oriented all the juridical and deontological indications, such as the international conventions and the laws of almost all the Countries.

  34. THANKS FOR YOUR PATIENCE AND ATTENTION!!

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