quarta-feira, 29 de abril de 2015

Gillick Competence

Gillick competence is a term originating in England and is used in medical law to decide whether a child (16 years or younger) is able to consent to his or her own medical treatment, without the need for parental permission or knowledge.
The standard is based on a decision of the House of Lords in the case Gillick v West Norfolk and Wisbech Area Health Authority[1985] (1985) 3 All ER 402 (HL). The case is binding in England and Wales, and has been approved in Australia, Canada and New Zealand. Similar provision is made in Scotland by The Age of Legal Capacity (Scotland) Act 1991. In Northern Ireland, although separate legislation applies, the then Department of Health and Social Services Northern Ireland stated that there was no reason to suppose that the House of Lords' decision would not be followed by the Northern Ireland Courts. (Wikipedia)

    Gillick (A.P.) (Respondent)
    West Norfolk and Wisbech Area Health Authority and the
    Department of Health and Social Security (Appellants)
    Die Jovis 17° Octobris 1985
The main question in this appeal is whether a doctor can
lawfully prescribe contraception for a girl under 16 years of age,
without the consent of her parents. The second appellant, the
Department of Health and Social Security ("the D.H.S.S.")
maintains that a doctor can do so. The respondent, Mrs. Gillick,
maintains that he cannot. The first appellant, West Norfolk and
Wisbech Area Health Authority, was not represented when the
appeal reached this House, but in the Court of Appeal they were
represented by the same counsel as the D.H.S.S.

Treatment for gender dysphoria in children: the new legal, ethical and clinical landscape

Malcolm K Smith and Ben Mathews

Med J Aust 2015; 202 (2): 102-104.  doi: 10.5694/mja14.00624

  • Gender dysphoria is a condition in which a child's subjectively felt identity and gender are not congruent with her or his biological sex. Because of this, the child suffers clinically significant distress or impairment in social functioning.
  • The Family Court of Australia has recently received an increasing number of applications seeking authorisation for the provision of hormones to treat gender dysphoria in children.
  • Some medical procedures and interventions performed on children are of such a grave nature that court authorisation must be obtained to render them lawful. These procedures are referred to as special medical procedures.
  • Hormonal therapy for the treatment of gender dysphoria in children is provided in two stages occurring years apart. Until recently, both stages of treatment were regarded by courts as special medical treatments, meaning court authorisation had to be provided for both stages.
  • In a significant recent development, courts have drawn a distinction between the two stages of treatment, permitting parents to consent to the first stage. In addition, it has been held that a child who is determined by a court to be Gillick competent can consent to stage 2 treatment.
  • The new legal developments concerning treatment for gender dysphoria are of ethical, clinical and practical importance to children and their families, and to medical practitioners treating children with gender dysphoria. Medical practitioners should benefit from an understanding of the recent developments in legal principles. This will ensure that they have up-to-date information about the circumstances under which treatment may be conducted with parental consent, and those in which they must seek court authorisation.

terça-feira, 24 de março de 2015

German court rules against banning veil in schools, but Europe remains divided

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Germany’s ban on teachers wearing the veil has been in and out of the courts for over a decade. Uli Deck/EPA

After more than a decade of legal battles and public debates in Germany, the country’s highest court has ruled against North Rhine-Westphalia’s 2006 ban on teachers wearing religious dress in state schools. On March 13, the German Federal Constitutional Courtdecided that an absolute prohibition on the wearing of a veil (generally the hijab) by state school teachers is incompatible with the German Constitution, in particular its provision on freedom of faith and of conscience.
But the German decision came in the same week that former French president Nicolas Sarkozy arguedFrance’s ban on the headscarf in schools should be extended to universities.
Across Europe, discussion continues about the extent to which the state can, or should, ban the wearing of headscarves or other religious symbols, such as thekippa, especially when worn by civil servants, other employees of state bodies or with public functions, or even by students of state schools. It has become a wide-ranging, contentious and divisive debate.

Legal challenges

Several countries in Europe have already prohibited the burqa in public spaces. In a 2004 Act, France prohibited the “adoption of signs or behaviours manifesting affiliation to a religion in state schools”, so restricting the freedom of both teachers and pupils based on its unique model of secularity or laïcité. France also has a ban on face veils in public spaces, and the European Court of Human Rights (ECHR) upheld the law in July 2014.

French courts have been handing down convictions for wearing veil in public since 2011. Ian Langsdon/EPA

In Switzerland and Turkey, teachers and students respectively have also been prohibited from wearing the hijab, and the laws have won the approval of the ECHR. Yet these decisions regarding Switzerland and Turkeyhave been rightly criticised as excessively restrictive and poorly justified. The ECHR used arguments relating to state religious neutrality, the need to protect children from undue religious influences and the right of parents to educate their children according to their religious beliefs. These arguments all seemed clearly insufficient to justify any such drastic limitation on the right of individuals to freedom of religion and to wear certain clothes.
The UK has not remained immune from this debate. Bothteachers and pupils have judicially challenged some of the restrictions on their freedom to wear certain religious attire, and courts are still in the process of clarifying the applicable law.
In Germany too, there have been some restrictive measures put in place throughout the last decade. Earlier decisions of the Federal Constitutional Court have accepted that the legislation of the German Länder (states) could lawfully impose a restriction on teachers’ religious dress. Yet, the Court has been somewhat sympathetic to the rights of complainants and conceded that state neutrality did not necessarily prevent state school teachers from wearing the hijab.

Getting the state out of our wardrobes

The debate on freedom of religion and the manifestation of religion through dress codes inevitably leads us to consider a range of fundamental rights: the right to privacy, the right to development of one’s personality, the right to equality, freedom of expression and the rights of minorities. Others have considered these issues within a wider discussion on the rights of parents, children, teachers and minorities, as well as on crucial aspects of national identity, multiculturalism, Islamophobia, secularism and liberalism.
These debates betray very clear – often narrow – understandings of individual autonomy, gender equality and religion. Many restrictions are justified within current preoccupations with global security, which can inevitably lead to even greater social tensions and limitations to individual rights. This is particularly relevant in educational contexts, where children should learn to respect differences and cherish diversity, rather than to fear and hate “the Other”.
“State neutrality” should not be used as an excuse for inactivity, as German lawyers Karl-Heinz Ladeur and Ino Augsberg have already argued. Prohibiting the burqa in public spaces may well be necessary for public security reasons as authorities need to be able to identify individuals. Yet banning religious symbols in the public arena altogether would be inappropriate as well, and should not be carried out on the basis of any model of secularism or neutrality. A more balanced and nuanced legal framework needs to be achieved.

Long live multiculturalism

Not long ago British prime minister, David Cameron, and the German chancellor, Angela Merkel, announced the failure of multiculturalism. Now this recent German court decision seems to be telling society that it has to keep trying: giving up on multiculturalism is not an option.
Only time will tell whether the decision will have an impact across borders and whether this approach will be emulated in other European countries. This would undoubtedly represent a welcome sea change, doing away with pointless restrictions on religious freedom and extreme models of secularism. Hopefully, multiculturalism is not dead yet – and will not be for a long time to come.