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Education And Debate

An Ethical Debate: The legal background

BMJ 1995; 310 doi: (Published 18 March 1995) Cite this as: BMJ 1995;310:717
  1. Michael A Jones

    The legal difficulty arising from elective ventilation concerns the legal basis for providing lawful treatment to patients who are unable to give a valid consent because they are incompetent. The consent of a competent adult provides the doctor's defence to a civil action for the tort of battery and, potentially, the crime of assault. But in the most common setting in which elective ventilation is contemplated the donor will be incompetent and not have made any advance declaration about treatment, in contrast with what may be done with his or her organs after death (which is the position governed by donor cards). As long as the patient is alive the legal justification for providing treatment is the principle of necessity. Relatives cannot give a valid consent on behalf of an incompetent adult. Treatment is “necessary” provided that it is in the “best interests” of the patient, and this occurs …

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