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Patient's Rights and Medical Care
In the face of the threat of euthanasia, does the patient have the right to the final word? What are his rights in the area of medical care? This essay will explore this question, and provide case histories to exemplify these rights in action.
For legally competent adult patients, regarding medical care per se - according to Anglo-American law -- every competent adult has the freedom to seek or not to seek medical care and to refuse to consent to any specific treatment proposed, under the common law right of bodily integrity and intangibility:
1. Competent adults may reject even lifesaving care under the right of bodily integrity and intangibility and also, if applicable, under the constitutional right of free exercise of religion (e.g., a Jehovah's Witness refusing a blood transfusion because it is against his religious beliefs).
2. They may not refuse lifesaving care if there is a compelling state interest in requiring treatment for the common good (e.g., immunization to prevent the spread of communicable disease).
3. A parent might be required to undergo lifesaving treatment if there is a compelling state interest in protecting the welfare of a child from being deprived of his needed caretaker.
4. Suicide attempts which result in life-threatening injuries may require lifesaving treatment which is given without requiring the patient's consent.
5. Rejection of lifesaving medical care is not legally equivalent to suicide because in those cases decided by the court none of the patients had a specific intent to cause his own death, but simply to accept the consequences of the life-threatening illness, "to let nature take its course" rather than undergo the burden of treatment.
Regarding legally incompetent patients, these are patients who lack the ability to make legal choices, so that no right to refuse consent is involved. Therefore court-ordered life-saving treatment is not a subordination of patient choice. The court will usually order lifesaving or ordinary care, but treatment that is extraordinary is not required.
Regarding minor children, Prof. John A. Robertson, of the Wisconsin University Law School, stated:
"Under traditional principles of criminal law the omission of ordinary care by parents, physicians and nurses creates criminal liability. The crimes committed may include murder, involuntary manslaughter, conspiracy and child abuse or neglect. Generally a person is criminally liable for homicide by omission if: 1) He has a legal duty to protect another; 2) with knowledge or gross negligence he fails to act; 3) and such failure proximately causes the death of the other.
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Discussion of the following actual cases is concerned only with whether or not the decisions are legal or illegal and not with their moral implications; whether the cases involve ordinary care or extraordinary care, and whether the decisions given would be legal or illegal:
1. An infant is born with Down's syndrome, indicating probable mental retardation. He needs very low-risk surgery for an easily correctible intestinal defect. If untreated the baby will not be able to retain food and will die. The parents refuse surgery, stating that the mental retardation will mean a less than meaningful life for the baby.
Answer: This case involves ordinary care; illegal decision: Parents may not refuse ordinary care; the refusal of surgery would result in the proximate cause of death for the child they have a legal duty to protect. Courts, however, usually have ruled in favor of parents' refusal.
2. A seven-year-old girl, auto-accident victim with severe internal bleeding, needs an immediate blood transfusion to prevent death. Her parents refuse consent because blood transfusions are forbidden by their religion (Jehovah's Witnesses).
Answer: This case involves ordinary care; illegal decision: Parents may not invoke their right to free exercise of religion to refuse lifesaving care for their child, for that would be a violation of the child's unalienable right to life, which takes precedence over all other fundamental rights.
3. A baby is born with anencephaly (part or most of the brain matter absent), with a prognosis of living only a few weeks or months. A decision is made to withhold all nourishment by mouth or other means.
Answer: Ordinary care; illegal decision: Ordinary care is mandatory for all patients regardless of prognosis. However, in practice, many children like this are starved.
4. A 55-year-old man with severe circulatory problems has gangrene of the leg. Amputation is necessary to save his life. The man refuses consent.
Answer: Ordinary care - with qualifications. This is one of those difficult cases which could be classified as extraordinary care if it would involve great psychological harm to the patient to be deprived of his leg. Morally he might feel free to refuse surgery but legally it would probably be ordinary care which would be lifesaving, the usual course of treatment for gangrene and of minimal risk.
Legal decision - competent adults have the legal right to refuse treatment under the right of bodily integrity and intangibility. It would not be classified as suicide since the patient did not have the intent to cause his own death, but did not want the consequences of loss of limb resulting from surgery.
5. A 50-year-old woman is dying of cancer. She has only a few days to live. She has severe anemia due to the cancer. Even though a blood transfusion is the usual treatment for severe anemia, the decision is made not to give it.
Answer: Extraordinary care - this is an example of a treatment that is ordinary care in most instances but becomes extraordinary care due to the circumstances of the particular case. The transfusion would not be effective against the advanced cancer and would be burdensome to the patient.
Legal decision - extraordinary care is not obligatory.
6. An 87-year-old incompetent woman with congestive heart and kidney failure has primary cancer of the intestine. Surgery is the usual treatment for such cancer but the family and doctor decide against it.
Answer: Extraordinary care - because of the advanced age and serious medical condition of the patient the surgery that might be considered ordinary care becomes extraordinary care because of its high risk under these circumstances.
Legal decision - extraordinary care is not obligatory.
7. A 45-year-old man has a bleeding ulcer for which he needs a blood transfusion. He refuses treatment because of religious beliefs which forbid transfusions of blood.
Answer: Ordinary care; legal decision - competent adults have the right to refuse even lifesaving treatment involving ordinary care under the right of bodily integrity and intangibility. In addition, this patient also had the right to refuse under the free exercise of religious right.
8. A baby is born with spina bifida (open spine with spinal cord exposed) and hydrocephalus (excessive fluid surrounding the brain). Immediate surgery is necessary to close the exposed spinal cord to prevent dangerous infection that could cause death, and to install a shunt to drain the excess fluid in the brain to prevent brain damage. The parents refuse consent because the child may be physically handicapped, involving hardship for the child and parents.
Answer: Ordinary care - because of the recent advances in spina bifida surgery and medical care, what had been high-risk surgery at one time is no longer so risky.
The Spina Bifida Association of America filed an amicus curiae brief to the Infant Jane Doe case. The brief states, "Nearly all patients who receive prompt and proper treatment now survive . . . have normal lifespans. . . . Left untreated, many die or live with greatly impaired futures, facing physical disabilities far more severe than they would have experienced with proper treatment and mental disabilities [which] proper treatment would have spared them altogether." (Spina Bifida)
Illegal decision - because the surgery involves ordinary care.
9. A baby is born with the same condition as above, spina bifida, but in addition the baby has no kidneys, a rare and fatal condition for which there is no treatment. No surgery was done for the spina bifida.
Answer: Extraordinary care - ordinary care (surgery for spina bifida) becomes extraordinary care because the fatal kidney condition makes surgery useless. The baby will die regardless of treatment.
Legal decision - useless treatment not required.
10. 5-year-old man stabs himself in the chest in a suicide attempt. Emergency chest surgery is needed to save his life. The man refuses consent.
Answer: Ordinary care; illegal decision - even though he is a competent adult, surgery to treat his injuries may be done without his consent because they were incurred as a result of a suicide attempt.
Robertson, John ("Involuntary Euthanasia of Defective Newborns - A Legal Analysis," Stanford Law Review, Vol. 27, 1975)
Spina Bifida Association. New York State Court of Appeals Oct. 28, 1983