Abstract
This chapter examines the tension that can surface when the more collaborative nature of family-centred health care confronts the representation of individual legal rights, particularly the rights of children, in legal disputes. After a brief introduction to some general issues that can arise, and a short historical review of the legal developments that recognized a broader range of different viewpoints within the family, the chapter considers three different factual scenarios with a view to showing three different sorts of problem: when parents disagree, when parents agree in a way that is problematic for the best interests of the child, and when parents agree but the child has autonomy rights that conflict with that agreed view. In each scenario the law’s approach to the problem is explored in some detail. The chapter finishes with some concluding remarks that point to the important difference in law between an impartial and an impersonal point of view. When the law protects individual rights it can be impartial, but it cannot be impersonal.
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Notes
- 1.
Unless otherwise stated legal references are according to the laws of Ontario, Canada.
- 2.
The term “parent(s)” will be used as a proxy for all legal guardians of children.
- 3.
For the purposes of this chapter the word “child” denotes the relationship within the family. It is recognized that many patients in a paediatric setting who are older may not identify with the term “child”; the use of the term “child” should not be read as pejorative.
- 4.
Femme-covert- whereby a woman’s legal existence was incorporated to that of the husband on marriage. Sir William Blackstone, Commentaries on the Laws of England Chapter: XV Husband and Wife.
- 5.
24 May 1918 all female citizens over 21 became eligible to vote in federal elections in Canada.
- 6.
Family Law Reform Act, 1978, S.O. 1978, c. 2. Ontario introduced a limited equal property division rule for married couples; extended. With respect to custody of children, Children’s Law Reform Act R.S.O. 1990, c. C.12, s. 20 (1).
- 7.
Two persons who had co-habited for a period of three years or who had lived together in a relationship of some permanence if they were the natural or adoptive parents of a child. Family Law Act, R.S.O. 1990, c. F.3. s. 29.
- 8.
It is a principle of law, that there is an obligation on every man to provide for those descended from his loins; Blackstone (1893).
- 9.
For example custody decisions; health care decisions; special education.
- 10.
Latin “parent of the country” invoked in common law jurisdictions- role of the state as guardians of persons with a disability such as children; mentally incompetent.
- 11.
The Fraser guidelines refer to the guidelines set out by Lord Fraser in his judgment of the Gillick case in the which apply specifically to contraceptive advice.
- 12.
Thanks to many insightful comments by social workers at the Hospital for Sick Children and in particular, Lysa Toye.
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Chapman, L. (2014). Accounting for the Family in Law: An Impartial but not Impersonal Point of View. In: Zlotnik Shaul, R. (eds) Paediatric Patient and Family-Centred Care: Ethical and Legal Issues. International Library of Ethics, Law, and the New Medicine, vol 57. Springer, New York, NY. https://doi.org/10.1007/978-1-4939-0323-8_6
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