On the right to refuse medical treatment


By Sunday Memba

“In the sphere of medical treatment, the refusal to accept a particular medical treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment, without the consent of the mentally competent adult, would interfere with the person’s physical integrity…” – Perry vs. UK (Application 2346/02 (2002) 66 BMLR 147 ECtHR)

Under common law, the legality of a medical treatment or procedure will largely turn upon whether the patient has given a valid consent to it. Any procedure or treatment that does not meet the crucial test of consent may amount to the tort of battery or the crime of assault.  Lord Cardozo famously stated in Schloendorff v Society of New York Hospita3l (1914 211 NY 125 at 126) that, ‘Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.

Thus, the condition that a patient can refuse treatment in any medical setting (whether life-saving or not) is the legal reflection of the primacy of the principle of respect of autonomy which takes precedence over the duty of care owed by health care professional to their patients. Moreover, it mirrors the fundamental principal in human rights law that every person’s rights are inviolable. The right to refuse treatment can be better expressed as respect of a person’s bodily integrity stemming from the right of self- determination (Malettte v Shulman (1990) 67 DLR (4th) 321 per Robins JA at 327-328)

Medical law professional who support the right of a patient to refuse treatment emphasize the value of one being in control of his health. Whether the choice is bad or good, it solely depends on the patient and not heath care professionals. Several courts around the world have made decisions upholding foolish and unwise decisions by patients.

A medical professional who intentionally or recklessly touches a patient without consent could be charged with negligence. This usually occurs happens where an act was committed maliciously, for instance, an act involving sexual assault. In battery, all of the loss from the medical operation done without the consent of the patient can be recovered in damages.

Sometimes a claim for medical negligence may suffice. Alasdair Maclean argues that it is more probable two sustain a claim for medical negligence that the tort of battery. First, the tort of battery has strong overtones of a criminal offence. Mostly, where the tort of battery is claimed to have been committed, it is also most likely that a crime has been committed. Secondly, the use of negligence gives the judges greater control over the scope of the tortious liability because, through the Bolam’s test, they can determine whether the doctor was acting reasonably.

Limitations to the right to refuse treatment

A person who lacks capacity to consent to treatment does not also have the capacity to refuse treatment. In competent children (who lack both the mental and legal capacity) and adults with mental disability do not have the right to refuse medical operations carried for their benefits.  An en ventre sa mere (foetus), mostly, does not have the discretion to refuse treatment. One of the impairments to the exercise of this right is the lack of capacity to consent.

Public policy is another ground that a health care provider can use to limit one power to refuse medication.  The interest of the majority or even a minority, is sufficient enough for a doctor to base on while performing a medical operation.  The public may include the doctor or other immediate patient and medical personnel. However, for a health care service provider to prefer the public policy exception, the public interest must be compelling. Not every opinion the public seems to have can dispense the patient’s right to refuse medical treatment.  In Bates v City of Little Rock, 361 U.S 516 it was held that where there is a significant encroachment into a person’s rights, the state or the public opinion can only succeed if it is evident that there is a subordinating interest which is compelling.

A patient cannot refuse treatment meant to maintain good hygienic standards and relieving pain. One cannot compromise the cleanliness of a health facility to satisfy his desire for a dirty surrounding. Moreover, doctors would be reluctant to witness a patient endure pain because the patient thinks it is in his best interest.

Doctors do not heed the call for the right to refuse treatment in emergency situations. Involuntary treatment on this occasion is accepted by the courts. In Canterbery v Spence 464 F. 2d,788 the court held that an unconscious person could not refuse to accept treatment. A presumption that the patient is incompetent to what is happening is the basis of limiting the right to refuse treatment. Imposition of treatment during emergency was emphasized further in Schloendorff v Society of New York Hospita3l (1914 211 NY 125 at 126).

It is important to note that the state has an interest in the life of its citizens. The state has a legitimate interest in prolonging the life of the citizenry in order to achieve certain economic or nationalistic ideas. The state’s interest in prolonging life should however be reconciled with the private interest of a person to rejecting the cost or the pain of a treatment procedure. Mostly, a person’s interest always prevails if this situation arises.
Finally, the right to refuse treatment is an important facet of medical law although instances of one refusing treatment are few. Courts should be vigilant to deal with these matters decisively when the time beckons.



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