|
|
 |
Where am I now? Lawlink > Law Reform Commission > Publications > 10. Consolidation or codification
Issues Paper 24 (2004) - Minors' consent to medical treatment
10. Consolidation or codification
10.1 The law governing the consent of young people to medical treatment is a complex combination of legislation and common law. As is explained in Chapter 2, this current legal framework lacks both clarity and consistency, with definitions of core concepts varying1 or, in some instances, lacking.2 In addition to these definitional problems, the framework is piecemeal in nature and lacks a coherent policy direction. These problems are largely attributable to the limited scope of statutory regulation and the separate development of the common law.
10.2 The absence of a clear legal framework may leave medical practitioners unable to provide medical treatment with the relative certainty of the law. Similarly, young people and their parents may encounter difficulties when medical treatment is sought. In recognition of these concerns, the terms of reference direct the Commission to consider whether the law should be codified or whether amendment is appropriate.
10.3 Codification would entail replacing all existing statute and common law with a statute, or group of statutes, that dealt with young people’s consent to medical treatment in a comprehensive and self-contained manner. The self-contained nature of codified legislation means that recourse to other sources of law, including the common law, would be excluded. This would provide easier access to and greater clarity of the law. In addition, principles and guidelines could be included in the codified legislation to enhance its value as a practical tool for individuals on both sides of the doctor-patient relationship. However, while codification offers significant advantages, it is not without disadvantages. One of the most compelling objections to codification is that a statutory code is less able to evolve with society than the common law.
10.4 If it is determined that the law should not be codified, an option would be to consolidate the law. Consolidation would involve bringing together all relevant statutory provisions in one statute or in a group of statutes. Significantly, the common law principles would continue to apply in conjunction with the consolidated legislation. While this would create a potential lack of clarity, retention of the common law would enable development of the law without the need for statutory amendment.
Issue 10.1
(a) Is the law that governs the consent of young people to medical treatment obscure?
(b) Should the law that governs the consent of young people to medical treatment be codified?
(c) If not, should the law that governs the consent of young people to medical treatment be consolidated?
FOOTNOTES
1. Compare, for example, the definitions of “medical treatment” in s 49(4) of the Minors (Property and Contracts) Act 1970 (NSW) and s 33(1) of the Guardianship Act 1987 (NSW).
2. There is no comprehensive definition of “consent” in either statute or common law. |
