1. TATIONpRÆSEN AUTUMN 2015 AARHUS UNIVERSITET USE OF FORCE VS LACK OF CARE IN PATIENTS WITH DISABILITIES AND POSSIBLE PAIN BY PH.D., POST.DOC, CAROLINE ADOLPHSEN 1

2. AUTUMN 2015 AARHUS UNIVERSITET OVERALL FRAMEWORK › Basic principle: The individual is autonomous and actions cannot be taken against his will unless it is in accordance with the law. › The Oviedo-convention (convention on bioethics) › The European Convention on Human Rights art. 8 (and 3) › National rules about the right to give informed consent and about personal freedom/autonomy › Rule of necessity for unforeseen situations › Duty of care – a duty to give help if needed and not rejected › Regarding health this means that no treatment can be carried out without the informed consent of the patient 2

3. AUTUMN 2015 AARHUS UNIVERSITET 3 The Patient The MP Consent Duty to get consent Information Dutu to inform Right to confidenceDuty of confidentiality

4. AUTUMN 2015 AARHUS UNIVERSITET 4 The medical ProfessionalInformation?Consent? Transmission/Transmission/access? access? The legal guardian/next of kinThe incompetent patient Custody-holder

5. AUTUMN 2015 AARHUS UNIVERSITET IDENTIFICATION – WHO ARE WE TALKING ABOUT? › Children › Adolescents who are incapable of giving consent › Adults who permanently lack the ability to make an informed consent + › Who are in need of dental care › Who? › Patients with an inherent impaired ability to understand the necessary information › Patients who has lost the ability to understand the necessary information › Some mentally disordered patients who are frequently ill (and for longer periods) 5

6. AUTUMN 2015 AARHUS UNIVERSITET DIFFERENT GROUPS › The 6-year-old with Downs Syndrome who ressits both toothbrushing (in general), examinations and tooth scaling? › The 17-year-old with cerebral paralysis? › The 32-year-old who is a manic depressive? › The 83-year-old suffering from Alzheimers? › How do we solve their need for dental care and try to prevent the situation from become dangerous? 6

7. AUTUMN 2015 AARHUS UNIVERSITET - The patient is unable to give informed consent - The patient’s rejection of treatment is as un-informed as the potential consent would be › But as a result of the rule of law, and the non-existing legal basis for the use of force for treating somatic health problems with the use of force, it is still not clearly allow to use force and the health professionals must respect the rejection DILEMMA

8. AUTUMN 2015 AARHUS UNIVERSITET DILEMMA › The principle of rule of law is set up to protect the individual from the state › History has shown that it is necessay with a safeguard to protect vulnarable groups › The mentally impaired have been abused and experimented on all over the world … But does that mean that they should not be protected from their own bad decision-making, fear and anxieties? 8

9. AUTUMN 2015 AARHUS UNIVERSITET SOLUTION? › In Denmark there is a rule about use of force on adults living in recidence homes: › absolutely necessary › in order to fulfill the duty of care › while brushing teeth or removing un-swallowed food, from the resident’s oral cavities. › The permission lasts for three months (under special circumstances six months) and the permission can only be renewed once. 9

10. AUTUMN 2015 AARHUS UNIVERSITET SOLUTION? › In Norway there is a rule about use of force on incapable patients for medical reasons if: › Neglecting to carry out the treatment can lead to substantial damage on the patient’s health › The healthcare is regarded as necessary › The procedure (and use of force) is proportional with the need for care › Going through with the procedure is clearly the best solution 10

11. AUTUMN 2015 AARHUS UNIVERSITET CAN USE OF FORCE BE ACCEPTED ON THE GROUNDS OF CARE FOR THE PATIENT? › The duty to care: › God standard › Conscience › Is it care to use force? › A duty to use force? 11

12. AUTUMN 2015 AARHUS UNIVERSITET › Legislation condoning use of force should require the medical professional to: › Seek acceptance of the treatment from the patient himself/herself › Evaluate the character of the treatment › Evaluate the prognosis with and without treatment › Evaluate the maturity and understanding of the patient (Based on Sinding Aasen 2008) › Evaluate the reason for the patient’s rejection: › Does the patient object to the result of the treatment? › Does the patient object to the pain or discomfort connected to the treatment? › Does the patient want another treatment of the same condition? CAN USE OF FORCE BE ACCEPTED ON THE GROUNDS OF CARE FOR THE PATIENT?