| Foreword |
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v | |
| Preface |
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vii | |
| Table of Cases |
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xxi | |
| Table of Statutes |
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xxix | |
| Table of Statutory Instruments |
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xxxiii | |
| Table of International Material |
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xxxv | |
| Abbreviations |
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xxxvii | |
| Part I General Principles In Relation To Medical Treatment And The Law |
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Chapter 1 Medical Treatment and Consent |
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3 | (12) |
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1.1 The meaning of 'consent' |
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3 | (1) |
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1.2 The purpose of consent to treatment |
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3 | (1) |
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1.3 Adults with capacity, adults lacking capacity and children |
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4 | (8) |
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4 | (4) |
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The requirement of consent before medical treatment |
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4 | (1) |
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The autonomy of the individual and the principle of self-determination |
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4 | (1) |
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Breaching the principles of self-determination and the autonomy of the individual |
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5 | (3) |
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8 | (1) |
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Adults who through lack of capacity are unable to consent to or refuse medical treatment |
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8 | (2) |
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The basis of any right to treat in the absence of consent |
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8 | (1) |
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The previous common law principle of necessity |
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9 | (1) |
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10 | (14) |
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The parental right to consent to medical treatment for and on behalf of a child |
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10 | (1) |
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The right of a minor to consent to treatment on his or her own behalf |
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11 | (1) |
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The concurrent powers of parent and child to consent to treatment |
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11 | (1) |
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Medical treatment at variance with parental wishes |
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12 | (1) |
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12 | (3) |
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Chapter 2 The 'Best Interests of the Patient' Test |
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15 | (8) |
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15 | (1) |
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2.2 Adults who are unable to consent to or refuse medical treatment |
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15 | (1) |
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16 | (1) |
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2.4 The principle of the sanctity of life |
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17 | (1) |
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2.5 Prolongation of life may not be in the best interests of the patient |
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17 | (2) |
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2.6 End of life care: whether to give life-sustaining treatment and the best interests of the patient |
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19 | (2) |
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2.7 The test of 'best interests' under MCA 2005, s 4 |
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21 | (2) |
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Chapter 3 The Doctor and the Courts |
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23 | (16) |
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3.1 The interface between the doctor and the courts |
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23 | (1) |
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3.2 The objectives of medical treatment and care |
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23 | (1) |
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3.3 The duty of the doctor |
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24 | (4) |
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The standard of care by a doctor in relation to medical treatment |
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25 | (1) |
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A doctor cannot be required to treat a patient (whether adult or child) in a particular way and against his or her clinical judgment |
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26 | (2) |
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3.4 Allocation of resources and the choice of medication |
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28 | (5) |
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33 | (6) |
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35 | (4) |
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Chapter 4 The Mental Capacity Act 2005 |
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39 | (14) |
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4.1 The general principles of the Act |
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39 | (1) |
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4.2 The statutory test of incapacity |
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40 | (1) |
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4.3 The test of incapacity |
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41 | (1) |
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4.4 The statutory provisions as to best interests |
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42 | (1) |
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4.5 The test as to best interests |
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43 | (2) |
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4.6 The wishes and feelings of P |
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45 | (2) |
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4.7 Mental Capacity Act 2005, s 5 |
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47 | (1) |
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48 | (1) |
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48 | (5) |
| Part II The Right To Life The 'Right To Die' |
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Chapter 5 The Right to Life: Adults: End-of-life Care; Whether to Give Life-sustaining Medical Treatment |
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53 | (26) |
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53 | (1) |
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54 | (1) |
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55 | (1) |
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5.4 Declarations under section 16 of the MCA 2005 |
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55 | (1) |
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5.5 Prohibition on motivation by any desire to bring about death |
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55 | (1) |
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5.6 Attorneys and Deputies: life-sustaining treatment |
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56 | (1) |
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5.7 Whether to give life-sustaining treatment in PVS cases |
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56 | (9) |
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The meaning and definition of PVS |
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56 | (1) |
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The case of Airedale NHS Trust v Bland [ 1993] AC 789 |
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57 | (4) |
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The significance of the case |
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57 | (1) |
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58 | (1) |
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58 | (1) |
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The reasoning for the decision by the House of Lords |
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58 | (3) |
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The sanctity of life: the duty to prolong life |
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61 | (1) |
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Opposition by family to not instigating or continuing with life-sustaining treatment |
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62 | (2) |
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PVS cases where a clinical feature of the condition is absent |
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64 | (1) |
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5.8 Whether to give life-sustaining treatment in cases other than PVS |
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65 | (14) |
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Cardio-Pulmonary Resuscitation (CPR): Do Not Activate CPR (DNACPR) |
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67 | (3) |
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Consulting the patient in relation to DNACPR |
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70 | (1) |
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Best interests test in relation to whether to give life-sustaining treatment |
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71 | (4) |
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Analysis of the case of Aintree v James in relation to best interests |
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75 | (4) |
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Chapter 6 The Right to Life: Children: End-of-life Care; Whether to Give Life-sustaining Treatment |
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79 | (18) |
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6.1 A framework for practice |
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79 | (1) |
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80 | (1) |
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6.3 Due process; emergency applications |
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81 | (1) |
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6.4 A doctor cannot be required to treat a patient against his or her clinical judgment |
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81 | (2) |
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6.5 Irreversible brain damage |
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83 | (1) |
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6.6 Discontinuing ventilation immediately and offering palliative care |
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84 | (3) |
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6.7 Authorising future discontinuance and/or non-re-instigation of artificial ventilation in the event of certain medical occurrences |
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87 | (4) |
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91 | (1) |
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6.9 Conjoined twins: the doctrine of double effect |
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92 | (5) |
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Chapter 7 The 'Right to Die': Suicide; Assisted Suicide; Voluntary Euthanasia/Mercy Killing |
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97 | (26) |
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97 | (2) |
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99 | (1) |
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99 | (16) |
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7.4 Voluntary euthanasia: mercy killing |
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115 | (8) |
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123 | (14) |
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125 | (12) |
| Part III Jurisdiction And Procedure In Medical Treatment Cases Concerning Incapacitated Adults And Children |
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Chapter 8 Jurisdiction: Procedure in Medical Treatment Cases |
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137 | (46) |
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8.1 Jurisdiction: procedure in relation to incapacitated adults |
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137 | (6) |
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Definitions under the COP Rules |
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137 | (1) |
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138 | (1) |
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Starting proceedings, and urgent/interim applications |
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139 | (1) |
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140 | (1) |
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141 | (1) |
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Vulnerable persons falling outside the scope of the MCA 2005 |
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141 | (1) |
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Transparency: hearings in private or in public |
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142 | (1) |
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8.2 Jurisdiction: procedure in relation to children |
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143 | (8) |
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The twofold jurisdiction: Children Act 1989; inherent jurisdiction of the High Court |
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143 | (3) |
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143 | (1) |
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Inherent Jurisdiction of the High Court |
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144 | (2) |
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Practice and procedure under the Family Procedure Rules 2010 |
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146 | (1) |
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Expert evidence; medical examination of children |
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147 | (1) |
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The legal status of the child who is the subject of any medical treatment issue/s |
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147 | (1) |
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148 | (1) |
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The representation of parents lacking capacity |
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149 | (4) |
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Transparency: hearings in private |
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149 | (2) |
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8.3 The transfer of proceedings between the Court of Protection and a court having jurisdiction under Children Act 1989 |
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151 | (2) |
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153 | (30) |
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Practice Direction E - Applications relating to serious medical treatment (PD9E) |
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155 | (4) |
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Ministry of Justice Court of Protection - healthcare and welfare cases |
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159 | (1854) |
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2013 | |
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The Official Solicitor to the Senior Courts: Appointment in Family Proceedings and Proceedings under the Inherent Jurisdiction in Relation to Adults |
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160 | (8) |
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Practice Direction 12D - Inherent Jurisdiction (including Wardship) Proceedings |
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168 | (5) |
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Mental Capacity Act 2005 (Transfer of Proceedings) Order 2007 |
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173 | (2) |
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Transparency in the Court of Protection Publication of Judgments Practice guidance issued on 16 January 2014 by Sir James Munby, President of the Court of Protection |
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175 | (8) |
| Part IV Other Specific Areas In Relation To Medical Treatment And The Law |
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Chapter 9 Adult Refusal of Medical Treatment: Non-consensual Treatment |
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183 | (26) |
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9.1 The presumption of capacity to decide |
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183 | (3) |
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Advance decisions, deputies and lasting powers of attorney |
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185 | (1) |
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9.2 Adults lacking the capacity to decide |
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186 | (1) |
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9.3 Adjudging whether or not an adult patient has the capacity to decide |
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186 | (3) |
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Re C and the common law three-stage decision-making test as to capacity to decide |
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188 | (1) |
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189 | (1) |
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9.4 Whether to override a refusal of consent to treatment through lack of capacity |
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189 | (16) |
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189 | (1) |
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190 | (1) |
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190 | (1) |
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191 | (18) |
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Induced delivery: Caesarean section operation |
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191 | (6) |
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197 | (1) |
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198 | (1) |
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199 | (2) |
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201 | (1) |
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202 | (1) |
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Anorexia and force-feeding |
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203 | (2) |
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9.5 The use of reasonable force as a necessary incidence of treatment |
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205 | (4) |
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Chapter 10 Medical Treatment and MHA 1983; Restriction on Deprivation of Liberty under the MCA 2005; The Interface Between MHA 1983 and MCA 2005 |
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209 | (42) |
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10.1 Self-determination and the mentally ill |
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209 | (4) |
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The common law test as to capacity to consent |
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210 | (1) |
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A person suffering from mental disorder is not necessarily incapable of giving or refusing consent to treatment |
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210 | (2) |
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Caesarean section operations and MHA 1983 |
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212 | (1) |
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213 | (7) |
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The meaning of medical treatment |
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214 | (1) |
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Part IV of MHA 1983: 'consent to treatment' |
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215 | (5) |
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A positive decision to impose non-consensual medical treatment pursuant to MHA 1983, s 63 |
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218 | (1) |
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A positive decision not to impose treatment under MHA 1983, s 3 |
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218 | (2) |
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10.3 Patients lacking the capacity to give or refuse consent to medical treatment |
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220 | (2) |
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Lasting Powers of Attorney |
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221 | (1) |
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The appointment of a deputy |
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221 | (1) |
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10.4 Informality of decision making in relation to adults lacking capacity |
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222 | (1) |
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10.5 Informal admissions to hospital under MHA 1983 |
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222 | (2) |
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10.6 Restriction on deprivation of liberty under MCA 2005 |
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224 | (7) |
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The distinction between restriction of liberty and deprivation of liberty |
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225 | (4) |
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Challenging a deprivation of liberty authorised by Sch Al to MCA 2005 |
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229 | (2) |
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231 | (1) |
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10.7 The interface between MHA 1983 and MCA 2005 |
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231 | (2) |
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233 | (18) |
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Deprivation of liberty - guidance for providers of children's homes and residential special schools |
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235 | (4) |
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Department of Health (28 March 2014) Deprivation of Liberty Safeguards (DoLS) |
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239 | (4) |
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Practice Direction AA - Deprivation of Liberty Applications (PD1OAA) |
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243 | (8) |
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Chapter 11 Children: Consent or Refusal of Consent to Medical Treatment |
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251 | (30) |
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11.1 Definition of a child |
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251 | (1) |
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11.2 Parental consent to medical treatment for and on behalf of the immature child |
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251 | (3) |
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The general requirement of consent before treatment |
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251 | (1) |
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252 | (1) |
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252 | (1) |
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Disagreement between parents |
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253 | (1) |
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11.3 Parental refusal of medical treatment for and on behalf of the immature child: overriding such refusal if in the best interests of the child |
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254 | (7) |
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255 | (1) |
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The views of the parents and the court's balancing exercise |
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255 | (6) |
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Liver transplant operation |
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256 | (1) |
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257 | (1) |
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Blood transfusions: Jehovah's Witnesses |
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258 | (1) |
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258 | (1) |
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259 | (2) |
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Radiotherapy and chemotherapy |
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261 | (1) |
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11.4 A child's rights to consent to medical treatment |
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261 | (4) |
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A child's common law right to consent |
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261 | (3) |
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The facts of the Gillick case |
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262 | (1) |
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The Gillick competency test |
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262 | (2) |
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The right of a Gillick-competent minor to consent to treatment can be overridden by the court |
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264 | (1) |
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A child's statutory right to consent |
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264 | (1) |
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Donation of organs or blood |
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264 | (1) |
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11.5 A child's rights to refuse consent to medical treatment |
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265 | (1) |
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No absolute right of any minor to refuse medical treatment |
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265 | (1) |
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The parental right to consent to treatment on behalf of a child who is refusing treatment |
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265 | (1) |
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11.6 The power of the court to overrule a child's refusal of consent to treatment |
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266 | (7) |
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The wide powers of the court to overrule a child's refusal |
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266 | (1) |
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267 | (1) |
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Whether or not the child lacks capacity |
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267 | (1) |
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Serious medical treatment cases where child near to the age of majority is refusing treatment for a life-threatening condition |
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268 | (1) |
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The 'best interests of the child' test |
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269 | (1) |
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Power of the court to order the detention of a child for treatment and the use of reasonable force incidental to treatment |
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269 | (1) |
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Abortion and young persons |
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270 | (3) |
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The power of the court to override a child's refusal to submit to medical examination under CA 1989, s 38(6) and to direct the child to be medically examined, assessed and treated |
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272 | (1) |
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273 | (2) |
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Applications by a father to prevent a mother having an abortion |
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273 | (1) |
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Applications toward an unborn child |
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273 | (1) |
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The interests of the unborn child where the mother refuses medical intervention |
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273 | (2) |
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11.8 Medical examinations and interviews of children |
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275 | (6) |
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Medical examinations prior to or in the absence of legal proceedings |
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275 | (1) |
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Medical examinations during the currency of family proceedings |
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275 | (2) |
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Medical examinations and interviews of children in respect of allegations of sexual or other abuse |
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277 | (4) |
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Chapter 12 Advance Decisions or 'Living Wills' |
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281 | (26) |
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12.1 Advance decisions to refuse treatment |
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281 | (1) |
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12.2 The statutory provisions |
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281 | (2) |
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12.3 Advance decisions generally |
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283 | (1) |
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12.4 Advance decisions to refuse life-sustaining treatment |
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284 | (1) |
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12.5 The jurisdiction of the court |
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285 | (6) |
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291 | (16) |
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Advance Decisions Precedents |
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293 | (8) |
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1 Standard advance decision |
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293 | (1) |
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2 Advance decision which the maker defines an intolerable condition |
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294 | (1) |
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3 Advance decision: any supervening illness is not to be actively treated |
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295 | (1) |
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4 Advance statement: maximum treatment |
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296 | (1) |
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5 Advance decision: treatment preferences |
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297 | (2) |
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6 People to be consulted before a treatment decision is made |
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299 | (1) |
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7 Letter registering an advance decision with a client's GP/Consultant |
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300 | (1) |
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301 | (6) |
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Chapter 13 Medical Treatment other than for Purely Medical Reasons |
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307 | (84) |
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307 | (11) |
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Prior sanction of the High Court required |
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307 | (1) |
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The special features of a sterilisation operation |
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307 | (1) |
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Children and sterilisation |
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308 | (2) |
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310 | (2) |
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Recent cases on sterilisation |
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312 | (5) |
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317 | (1) |
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13.2 Human Tissue Act 2004 |
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318 | (15) |
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Code of Practice 1: Consent |
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321 | (2) |
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322 | (1) |
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322 | (1) |
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323 | (1) |
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323 | (1) |
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Code of Practice 2: Donation of organs for transplantation |
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323 | (7) |
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324 | (1) |
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Adults - special considerations |
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325 | (1) |
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Children - special considerations |
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326 | (1) |
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326 | (4) |
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330 | (3) |
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13.3 The Human Fertilisation and Embryology Act 1990 |
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333 | (14) |
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Meaning of 'embryo' and 'gamete' |
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333 | (1) |
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Section 3: prohibitions in connection with embryos |
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333 | (1) |
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Consent to use or storage of gametes, embryos and human admixed embryos etc. |
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334 | (2) |
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334 | (1) |
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334 | (1) |
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335 | (1) |
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The collection and storage of embryos and gametes |
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335 | (1) |
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Withdrawal of consent to the storage/usage of gametes |
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336 | (3) |
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Parenthood in cases involving assisted reproduction |
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339 | (1) |
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Parenthood and the use of sperm, or transfer of embryo, after death of man providing sperm |
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340 | (3) |
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343 | (2) |
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The role (if any) of the sperm donor in lesbian co-parenting |
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345 | (2) |
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Schedule 7 Part 2 to the Same Sex (Married Couples Act) 2013 |
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347 | (1) |
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13.4 Surrogacy: parental orders |
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347 | (2) |
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13.5 Scientific testing: paternity testing |
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349 | (4) |
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Power of court to direct the use of scientific tests |
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349 | (2) |
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Consents required for taking of bodily sample |
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351 | (1) |
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Failure to comply with direction for taking scientific tests |
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351 | (2) |
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Jurisdiction of the court |
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353 | (1) |
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353 | (1) |
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354 | (1) |
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13.7 Tattooing and body piercing; other forms of body modification |
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354 | (3) |
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355 | (1) |
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355 | (1) |
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Cosmetic body piercing generally |
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355 | (1) |
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356 | (1) |
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Piercing of nipples and genitalia |
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356 | (1) |
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Acupuncture and electrolysis |
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356 | (1) |
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Extreme forms of body modification |
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357 | (1) |
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13.8 Gender Recognition Act 2004 |
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357 | (2) |
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358 | (1) |
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13.9 Female Genital Mutilation Act 2003 |
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359 | (1) |
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359 | (2) |
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361 | (30) |
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Guidance in relation to requirements of the Abortion Act 1967 for all those responsible for commissioning, providing and managing service provision |
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363 | (10) |
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President's Guidance No. 1 Evidential requirements for applications under section 1(1)(a) of the Gender Recognition Act 2004 |
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373 | (3) |
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Female Genital Mutilation Act 2003 |
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376 | (3) |
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The law and ethics of male circumcision: guidance for doctors |
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379 | (12) |
| Index |
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391 | |