My policy paper will discuss the policy implication of my inquiries that are to be reported in the research paper. The aim is to offer a comprehensive analysis of the legislative process that can result in a legal policy concerning health care that respects personal autonomy.

 

I will define the legal preconditions of informed decision making, and I will formulate recommendations for an appropriate legal regulation. Special problems of the recognition of the patients' right to self-determination will be discussed in the following health care related domains:

 

1. Sexual health

2. End-of life treatment / Palliative care

3. HIV testing and ARV treatment.

 

In what follows I am summing up the results of my work as it now stands. The summary will contain a list of the main legal principles and issues related to reproductive and sexual health. Let me mention one of my sources, the one which helped me most in preparing this summary:

Rebecca J. Cook, Bernard M. Dickens, Mahmoud F.Fathalla: Reproductive Health and Human Rights, Oxford University Press, 2003

 

1. Main components of sexual health

 

Freedom from sexual abuse, coercion

 

Acces to reproductive health services

            Availability, accessibility, acceptability, quality

 

Safety from sexually transmitted diseases

            Voluntary and confidential counseling and testing (HIV/Hepatitis)

Access to appropriate screening programs (HVP/Cervical cancer)

Prevention: effective methods of contraception do not offer protection against infection; access to effective preventive methods such as female and male condoms

Empowerment of women in their personal, sexual life

 

Unwanted pregnancies

Prevention: Sex education

Access to contraception

Availability of emergency contraception

Access to safe pregnancy termination services

 

Maternity

            Right of access to appropriate health services

            Ability to regulate and control fertility

                        Right to information

                        Freedom to decide when to reproduce 

Infertility

            Access to medically assisted reproduction

 

2. Legal concerns in reproductive health

 

Back ground question: Whether rights to reproductive and sexual health are positive rights (sterilization, contraception, abortion, IVF provided by state institutions for those made eligible to receive them) or negative rights (obtaining services of one's choice without state obstruction)?

 

 

Right to appropriate health care services

           

Fair allocation of resources:  address the basic needs in the allocation of health resources in a fair and transparent way. Requirement that health benefits are allocated equitably or at least are not denied in un unfair or arbitrary way.

 

Availability of coast effective interventions for particular reproductive health problems

 

Conscientious objection – a right of non-participation in abortion, sterilization, etc.

Inapplicable when patients are in emergency situations (life-saving treatment for incomplete abortion). Legal duty of appropriate referral.

 

Positive steps are required from the sate to ensure access to the necessary care: claim for anti-retroviral and associated treatment. Denial of adequate antiretroviral treatment constitutes inhuman treatment by the international human rights courts decisions.

 

Equal treatment: non discrimination against persons with HIV or other vulnerable or marginalized section of the population seeking services. Discrimination on ground of sex orientation- prohibited by non discrimination laws.

 

Appropriate proceedings against health care professional sexual abuse of patients

           

Right to information

 

Standard for disclosure: A reasonable person in the general circumstances of the patient would consider material for the exercise of choice

 

Freedom from any bias: health care professionals must act non-judgementally (sexual practices that conventional religion find unnatural, immoral)

 

Some laws restrict access to birth-controll informaton and contraceptives: it it a violation on the right to information that is necessary to protect reproductive health and choice.

 

Positive measures: introduction of compulsory sex education in schools. International tribunals favour such education for individual autonomy and responsibility and upheld it against parent's moral or religious objections.

 

Right to informed and free decision-making

 

Right to reproductive self-determination: limit the risk of unplanned pregnancy, spaced pregnancies

 

Autonomy of choice: no need of consent of any third party (husband, wife,etc)  

 

Restrictive, criminal laws that inhibit free decision-making:

                        Laws that prohibit medical procedures:  such as abortion, or contraception

                        Requirement of husband's authorization

                        Requirement of parental authorization in case of adolescent girls

 

Substitute decision-making: protection of persons with limited decision-making capacity (children), informed consent may be given by legal guardians.

 

Adolescents lawful access to contraception and reproductive health care without the parents informed consent: Acceptance of the intellectually mature sexually active adolescent's informed decision on contraception or other request for medical assistance under the legal rule of “mature minor”

           

            HIV testing:

                        Voluntary or consensual

                        Mandatory or compulsory: pregnant women, HIV-positive mothers,

                        Commercial sex workers

Testing is individual and identified, screening is often of tissue samples that are anonymously derived from a population group: individuals' consent is not necessarily required (pregnant women)

                       

Privacy

 

Respect for choice in family life against legislative interventions in their reproductive choices. Right to reproductive self-determination and free choice of maternity includes the right to decide the number and spacing of one's children.

 

Can be invoked to protect  legal use of medically assisted reproduction

 

            Adult consensual sexual activity in private is covered by the concept of privacy

 

Medical confidentiality

 

Critical in the delivery of reproductive health care and regarding sexual health

Women can refuse to seek health care because they believe their confidentiality will not be protected

 

If the medical practitioner makes acceptance conditional on the parents being informed it can deter the adolescent from seeking medical assistance.

 

Clinics may have ensure that their own names do not disclose their services such as that they treat only patients with STIs.

 

Counseling on how to avoid STD's, risk of exposure to HIV- confidential, anonymous services encourage individuals to seek information

 

Only authorized disclosure (with the patient consent)

 

Legal obligation to inform public health authorities  -  health care providers are bound by duties of confidentiality, reporting without personal identifier

 

Third party protection by information and counselling, breach of confidentiality only when the patient cause serious harm to others.

 

Disclosure permitted only  in very limited circumstances, such as were there is an imminent risk to an identifiable person.

 

Protection of the staff in hospital settings: protection by general caution, education and training not by disclosing that particular patients have HIV or hepatitis.