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Lecture at Princess Noura University on October 5, 2020 by Professor Omar Hasan Kasule MB ChB (MUK), MPH (Harvard), DrPH (Harvard)
Learning Objectives
· Definition and conditions of legal competence
· Definition and conditions of guardianship
· Parents as guardians of young children
· Relatives and spouses as guardians
· Case scenarios
1.0 DEFINITION OF COMPETENCE (تعريف الاهلية)
· A person with full legal competence has full rights in decisions and actions regarding his person and property. He also has full responsibility for his actions of commission or omission.
· Legal competence (ahliyyat) is the basis for intention (niyyat) which is the basis of validity of human actions. Therefore human actions cannot be valid without legal competence.
· There is a difference between competence and capacity. A competent adult may not be capacitous because of inability to speak
· Competence is task-specific. A person competent in one task may be incompetent in another one.
· A legally incompetent person is not held liable for some of his actions or words. The prophet said ‘rufi’a al qalam ‘an thalaathin…’
· Technics of forensic psychiatry may be used to test for competency
· Intellect, 'aql, The main condition is that of intellectual competence
· Puberty, buloogh. Is an approximation of intellectual maturity
· Knowledge, 'ilm. of obligations, rights, actions and their consequences can affect legal competence.
· Civil liberty or freedom, hurriyat.
· Emotional competence: considered in some decisions like marriage or medical decisions under stress.
4.0 GUARDIANSHIP (wilaayat)· Legal competence with regard to acquisition of rights, ahliyat al wujuub (b) legal competence with regard to execution of obligations, ahliyat al adaa.
· Full competence, ahliyyat kamilat, or deficient competemce, ahliyyat naqisat.
· General competence vs. specific competence
· Voluntary impediments to competence, mawaniu al taklif al ikhtiyariyat, e.g. ignorance, jahal; intoxication, sikr;
· Involuntary impediments to competence, mawaniu al taklif ghayr al ikhtiyariyah or awaridh samawiyyah e.g madness, junuun; mental impairment, safah, loss of consciousness, ighma, childhood, sighar. Forgetting, nisyaan & sahaw, terminal illness, maradh al mawt, absent mindedness, ghaflat
· Legal guardianship, wilayat, is legal authority given to a guardian, wali, to make and carry out decisions regarding the person, nafs, or wealth, maal
· Two types: general guardianship (wilaayat shar’iyyat) and specific medical guardianship (wilaayat tibbiyat)
· Qualifications of the guardian (shuruut al waliy): he must be legally competent and must be able to carry out the duties of guardianship
· The decisions of the guardian are binding unless they are clearly not in the best interests of the patient
· Who is the waliy: a blood relation or a representative of the government? If several blood relations are in the hospital the guardian is selected according to the ruled on inheritance.
· Decision by a proxy can work in two ways: (a) decide what the patient would have decided if able (b) decide in the best interests of the patient.
· The guardian must abide by the advance directive or living will.
5.0 QAWAID AL FIQH RELATING TO GUARDIANSHIP
6.0 MINISTRY OF HEALTH CIRCULAR 2/50/101994 dated 26/3/1433
· Consent for children <18yr are: father, mother, brother, and sister
· Consent for incompetent adults: father, mother, brother, sister, son, sister
· Consent for adult competent male or female patient >18yr by himself/herself.
7.0 MINISTRY OF HEALTH CIRCULAR 2/50/101994 dated 26/3/1433
· The next of kin must be: >18yr, related by blood to the patient, has an identification card
· A competent adult signs himself/herself but if not physically able a next of kin can sign on behalf
· The authorized next of kin signs on behalf of children
· A legal representative (wakil) who is not a next of kin signs if legally authorized
· The wife signs by herself for all operations except tubal ligation or hysterectomy that require husband consent.
8.0 PARENTS AS GUARDIANS OF CHILDREN
· Below the age of 7 (age of discrimination sinn al tamyiiz) all decisions are made by the legal guardian. 7 and puberty children can assent but guardian must approve
· If the 2 parents disagree, the physician can proceed if one of the parents consents. If the child disagrees with the parent, the parental choice is followed.
· The court can override parental consent if not in the best interests of the child
· The physician can proceed to give life-saving treatment to a child even if parents refuse to give consent.
· Parental decisions on organ donation to a relative may be a conflict of interest
· Children who are parents decide for themselves
· Children above puberty or 18 years may not be intellectually mature to be competent.
9.0 CASE STUDY #1
· A 30-year old patient of multiple sclerosis had 5 years before while in good health designated her husband as the decision maker. When she lost consciousness the doctors needed a decision whether to put her on life support. The husband who had by that remarried and lived in a separate house decided against life support because it would prolong her suffering. Her father intervened and decided for life support because that would be in her best interests.
10.0 CASE STUDY #2
· A patient was brought to the emergency room by the police after attempting to kill himself by hanging. He was unconscious when first brought in and had a signed suicide note in his shirt pocket saying that he wanted to die. The doctors ignored the note and started resuscitation measures. The patient became conscious after 30 minutes and protested at the medical treatment arguing that he wanted to die. The doctor was thinking of stopping resuscitation measures when the patient’s father and wife arrived and instructed the doctor to continue resuscitation.
11.0 CASE STUDY #3
· A university professor with previous episodes of transient stroke had written a directive and had it witnessed that if he lost consciousness he would not like to be resuscitated. Years later he was brought to the hospital unconscious from head injuries sustained in a car accident. The doctors reading his directive in his shirt pocket decided not to resuscitate him but his wife insisted that he be resuscitated.
12.0 CASE STUDY #4
· Doctors wrote a Do-not-resuscitate (DNR) order for an 80-year old grandmother with disseminated untreatable ovarian cancer. Her family objected vehemently when told of this decision and sought its reversal. Before the dispute was resolved the patient collapsed after an episode of acute pneumonia unrelated to her original condition. The nurses following the DNR order did not call the resuscitation team.
13.0 CASE STUDY #5
· A car accident victim in severe shock was wheeled into the emergency room with un-recordable blood pressure or pulse. ECG showed low amplitude slow waves. The doctor did not declare death but against the insistence of family members refused to institute life support because he reasoned there was no hope. The patient was declared dead 1 hour later. The family threatened to sue the doctor.