Legal

1
Legal Ethical Issues in the Delivery of
Reproductive Health Services and Family Life
Education

• By Joan Meade
• November 2006

2
Law

• A rule of conduct or procedure established by
  custom, agreement, or authority
• The body of rules and principles governing the
  affairs of a community and enforced by a
  political authority (parliament in our setting)
• The condition of social order and justice created
  by adherence to such a system
• A set of rules or principles dealing with a
  specific area of a legal system
• A piece of enacted legislation

3
Law

• Rules enacted by parliament for the peace, order
  and good governance of a country
• When considered in relation to its origin, it is
  statute law or common law
• Statute Law enacted by parliament
• Common Law based on custom and usage (decisions
  of the court)
• Legislative breaches result in court action
• Criminal proceedings
• Civil proceedings

4
Ethics

• Ethics consists of the principles of conduct
  governing an individual or a group
• Ethics is a set of morally-driven (good vs bad
  right vs wrong) principles, which guides human
  nature
• Ethics refers to normative standards of
  behaviour that prescribe how people should behave
  or what ought to be, that is they deal with moral
  duty and obligation
• It embodies general principles about what is good
  and right, is universal in nature and is often
  codified, for example as professional codes of
  ethics

5
Ethics

• Codes of ethics provide standards for the
  guidance of individuals and professions in their
  relationships and decision-making processes based
  on fundamental ethical principles
• Ethical Principles include
• Autonomy the promotion of self-determination or
  the freedom of clients to choose their own
  direction

6
Ethics

• Nonmaleficence avoiding doing harm or
  refraining from actions that risk hurting the
  client
• Beneficence promoting the good of others
  including respecting the dignity and promoting
  the welfare of clients
• Justice or fairness providing equal treatment
  for all people regardless of age, gender, race,
  ethnicity, disability etc.

7
Ethics

• Fidelity making honest promises and honouring
  commitments to those who are served
• Veracity truthfulness with clients to the
  extent where clients understand the implications
  of treatment
• Ethical breaches result in
• Disciplinary action by professional bodies
• Court action

8
Sexual Reproductive Rights

• Principles to which the Government of Jamaica
  adheres based on human rights instruments and
  signed conventions (NFPB 2004)
• The right to liberty and security of person
  recognizing that no one should be forcibly
  sterilised
• Right to equality, and to be free from all forms
  of discrimination including ones sexual
  reproductive life

9
Sexual Reproductive Rights

• Right to privacy meaning that all sexual and
  reproductive health services should be
  confidential and all women have the right to
  autonomous reproductive choices
• Right to information and education so that
  decisions can be made on the basis of full, free
  and informed consent
• Right to choose whether to marry and to found and
  plan a family
• Right to decide whether and when to have children

10
Sexual Reproductive Rights

• Right to health care and health protection
  including the right to highest quality health
  care and freedom from harmful traditional
  practices
• Right to the benefits of scientific progress
  including the right to new reproductive health
  technologies that are safe, effective and
  acceptable
• Right to freedom of assembly including the right
  to seek to influence government to prioritise
  sexual and reproductive health rights
• Right to be free from torture and ill-treatment
  including the right to be free from violence,
  sexual exploitation and abuse

11
Relevant Laws

• Not all rights are fully grounded in Jamaican
  laws
• Some useful legal provisions relating to sexual
  and reproductive health are noted in the
  following slides.

12
Offences Against the Person Act

• Anyone who abandons or exposes a child under two
  years of age that endangers the childs life or
  health, such that the child is likely to suffer
  permanent injury, is guilty of a misdemeanour
  punishable by 3 years in jail

13
Offences Against the Person Act

• Assault or battery of any person liable to a fine
  or imprisonment (2 months)
• Assault battery of male child under 14 years of
  age or any female, that cannot be dealt with
  under common assaults, liable to heavier fine and
  imprisonment (6 months)
• Conviction for rape liable to life imprisonment

14
Offences Against the Person Act

• Unlawful procurement of a female under the age of
  18 years for illicit carnal connection to a male
  is liable to imprisonment (3 years)
• Carnal abuse of girl under 12 years liable to
  life imprisonment

15
Offences Against the Person Act

• Carnal abuse of girl over 12 years or under 16
  years guilty of misdemeanour and liable to
  imprisonment (7 years) except for a male 23
  years of age or younger who believed that the
  girl was over 16 years of age.

16
Offences Against the Person Act

• Owner of premises who allows a girl under 16 to
  be carnally known by any man is liable
• Parent who causes or encourages seduction or
  prostitution of girl under 16 shall have parental
  rights removed
• Consent of girl under 16 is no defence

17
Offences Against the Person Act

• Any male who lives from the proceeds of
  prostitution or solicits in a public place is
  liable to imprisonment (1 year)
• Any female who aids, abets or compels
  prostitution liable to imprisonment
• Child stealing liable for imprisonment (7 years)

18
Offences Against the Person Act

• Bigamy liable to imprisonment (4 years)
• Administering to self or someone else drugs or
  using instruments to procure abortion liable to
  life imprisonment
• The abominable crime of buggery liable to
  imprisonment (10 years)

19
Affiliation Act

• On the application of a mother or guardian of a
  child, the court has the power to cause a
  putative father to pay a sum of money for the
  maintenance and education of that child. The
  order ceases when the child reaches 16 years of
  age but may continue to age 18 years or to 21
  years where the child is engaged in a course of
  education or training

20
Maintenance Act

• Person may apply to the family court or Resident
  Magistrates court for a maintenance order
• Each spouse is obliged to maintain the other
  where that person is unable to meet his or her
  own needs to include fair share of child support
• On termination of cohabitation (living together
  for five or more years) maintenance order can be
  made

21
Maintenance Act

• Parents and grandparents have obligation to
  maintain children or grandchildren who are minors
  (under age 18 years) or who are unmarried and
  cannot meet their own needs
• Person, who is not a minor, has an obligation to
  maintain parents and grandparents

22
Incest Act

• Any male who has carnal knowledge of a woman who
  is his grand-daughter, daughter, sister or mother
  is guilty of a misdemeanour and liable to
  imprisonment
• Any female, above the age of 16, who permits
  grand-father, father, brother or son to have
  carnal knowledge of her is guilty of a
  misdemeanour and is liable to imprisonment

23
Child Care Protection Act

• Applies to parents, teachers, day-care centre
  workers, doctors, nurses, guidance counselors and
  other persons who work with children. In fact,
  every adult has a responsibility under this law
  to make sure that all children are protected from
  abuse or neglect .

24
Child Care Protection Act

• The Act says that
• parents have the main responsibility for the care
  and protection of children
• Every adult has a duty under the Act to make a
  report if they know or suspect that a child is
  being abused or is in need of care and protection
• Whether you are certain or suspicious
• Whether the abuse is happening, has happened or
  is likely to happen

25
Marriage Act

• Prohibits marriage between persons under the age
  of 16 years
• Minimum age for marriage is 16 years, with
  parental consent if the female is under 18 years
  of age and the male is under 21 years of age,
  except where the husband is a widower or the wife
  is a widow

26
The Law Reform (Age of Majority) Act

• Minor who has attained the age of 16 years can
  give consent for surgical, medical or dental
  treatment for himself or herself

27
Venereal Disease Act

• Requires the notification of diseases, including
  sexually transmitted diseases, to the Chief
  Medical Officer

28
Domestic Violence Act

• Persons in a family setting may obtain an order
  from the court protecting them from molestation,
  stalking, persistent phone calls, verbal abuse
  etc. by an specified individual

29
Reproductive Health Services to Minors

• The Government of Jamaica, through endorsement of
  UN agreements and Human Rights instruments, is
  committed to
• Assuring the right of a child who is capable to
  express his/her views and give these views due
  weight in accordance with age and maturity
• Ensuring that no child is deprived of right of
  access to health care

30
Reproductive Health Services to Minors

• Taking appropriate action to abolish traditional
  practices prejudicial to the health of the child
• Ensuring that in all actions concerning children,
  the best interest of the child shall be the
  primary consideration

31
Reproductive Health Services to Minors

• Adolescent must be seen at health facility
  whether or not accompanied by an adult
• Health professional has an ethical obligation to
• Show respect to and preserve dignity of the
  adolescent
• Observe strict confidentiality unless there are
  clear and compelling reasons to the contrary and
  in such cases the adolescent must be informed
  about disclosure and its consequences
• Provide non-judgemental health information and
  services to allow the adolescent free choice of
  treatment
• Obtain the adolescents informed consent

32
Reproductive Health Services to Minors

• The health professional should encourage
  abstinence and provide counselling about sexual
  behaviours
• If minor intends to continue sexual activity
  contraceptive advice is in his/her best interest

33
Reproductive Health Services to Minors

• The health professional should exercise his/her
  best judgement in determining that
• The minor cannot be persuaded to confide in
  parent(s)
• Minor is likely to continue sexual activity
• Minor has full information , has given full
  consideration to the issues, understands the
  advice of the health professional
• Minor has the cognitive maturity to give consent
• Provision of medical contraceptive without
  parental consent is in minors best interest

34
Reproductive Health Services to Minors

• Contraceptive services should be given in a broad
  spectrum counselling environment
• Health personnel should provide appropriate
  follow-up for the minor
• When deciding to accept a mature minor as a
  patient, the health provider must consider
  his/her personal views about confidentiality,
  counsel and refer if necessary
• Mature minor is an adolescent younger than the
  age of majority who, although living at home as a
  dependent, demonstrates the cognitive ability to
  give informed consent

35
Family Life Education Policy

• States that HFLE enables persons to understand
  themselves as socially and sexually responsible
  beings
• Recognises the importance of human sexuality and
  incorporates the importance of reproductive
  health education

36
National Policy for HIV/AIDS Management in Schools

• Requires integration of persons living with HIV
  into school system
• Requires non-discrimination
• States that persons (parents, children, staff)
  cannot be compelled to disclose HIV status
• Where HIV positive status in known this
  information is to kept confidential

37
National Policy for HIV/AIDS Management in Schools

• Requires an ongoing HFLE and HIV/AIDS Education
  Programme in schools stressing age-appropriate
  information
• Requires that provisions be made to prevent
  transmission of blood borne pathogens, including
  HIV
• Points out that breach of confidentiality may be
  actionable in court

38
Confidentiality

• Confidentiality is an ethical as well as a legal
  obligation
• Law of evidence does not recognise any privilege
  of communication between doctor and patient
• Court will insist on disclosure of confidential
  information only where it is essential in the
  interest of justice (Dennis Morrison 1999)

39
Confidentiality

• With regard to children a capacity approach is
  adopted.
• Obligation of confidence arises if the child is
  competent to form a relationship of confidence
  understands what secrecy is
• On the face of it, with an incompetent child the
  doctor will be obliged to disclose information to
  the parents (Dennis Morrison 1999)