patients, their families and the doctors, when disagreements about treatment
options arise. They should not hesitate to draw on and share their own insights
into a patient's requirements.
The third and final point concerns the limits to the courts' powers over the
allocation of health care resources. While courts are allowed to vet how decisions
are made, they must confine themselves to procedural points, and ignore the
benefits which patients might derive from receiving the resources they request.
The cases have shown that no exception is made even for critically ill patients
whose survival depends on treatment being funded [1].
The courts' reluctance, highlighted above, to secure health care services for
patients, may prove to be incompatible with the requirements of the European
Convention, which, because of section 6 of the Human Rights Act 1998, must be
complied with whenever possible by our judges. As under Article 241) of the
Convention, `Everyone's right to life shall be protected by law', our courts should
surely now be prepared to scrutinise the merits of at least those decisions which
deny a patient potentially life-saving treatment.
At local level, scarcity of resources should be monitored by nursing staff. Nurses
have been reminded by the UKCC that they infringe their Code of Professional
Conduct if they fail to report their concerns about inadequate resources to an
appropriate line manager [2]. The duty to report arises whenever patient care or
welfare is at risk.
10.1 Babies and young children
10.1.1 The significance of parental responsibility
The importance attached by the law to a patient's ability to consent to medical
procedures produces an obvious problem in the case of children. As children lack
the legal capacity to give a valid consent, nurses who treat them are exposed to the
risk of being sued for `battery', the unauthorised physical contact with another
person. To overcome this difficulty, the law allows consent to be given by proxy. In
an extreme emergency, anyone looking after a child can offer or authorise medical
treatment [3]. For example, if the condition of a child in hospital deteriorated
suddenly then no consent to intervene on his or her behalf would be needed. If
time permits, however, the consent of a person with parental responsibility for the
child must be soughtGillickv.West Norfolk and Wisbech Area Health Authority
41985).
Mothers acquire parental responsibility automatically. So do fathers if they are
married to the mother of their child at the time of the birth. Unmarried fathers
have the option of applying for parental responsibility through the courts, or
entering into a parental responsibility agreement with the mother [4]. The form of
such an agreement is prescribed by law, and to be valid, the agreement must be
recorded at the High Court. These legal hoops that unmarried fathers must jump
through are under review at the time of writing, the Lord Chancellor's Department
having proposed that signing the birth register should entitle a father to parental
responsibility [5]. At present, though, an unmarried father's capacity to act as
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