Procedures that are Against the Medical Interests of Incompetent Adults

Oxford Journal of Legal Studies 22 (4):575-618 (2002)
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Procedures such as organ or tissue donation, elective ventilation and non‐therapeutic research can be said to be against the medical interests of the participant. Competent adults can consent to procedures such as these that are against their medical interests, but when, if ever, should incompetent persons participate in such procedures? Legal approaches to decision‐making in the area of the medical care of incompetent persons are generally based on respect for the patient's autonomy, or protection of her welfare, or some combination of the two. The limitations of these approaches become apparent upon examination of their application in this context. Societal interests are also used to justify the participation of the incompetent in procedures which are against their medical interests, for example, the societal interest in pursuing non‐therapeutic research on incompetents in order to benefit future incompetents. These types of approaches are implicit in much current policy and reform proposals on non‐therapeutic research, contributing to the disrespect for incompetent persons that is implicit in many research projects and much argument on the categorization of risks, and the repeated failure to consider the burdens imposed on incompetent persons in the interests of society



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