Hi bren,
The first thing I did to aid you in your quest for information was
search on
[ "refuse treatment" patient rights ]. A helpful page discussing your
dilemma is found in Google's cache which reads, in part:
"Refusing Medical Treatment
Similarly, patients have the right to refuse medical treatment, based
on the principles of individual autonomy and bodily integrity. In some
circumstances, refusal of treatment may be based on religious grounds.
In 1990, the U.S. Supreme Court recognized in Cruzan v. Director,
Missouri Department of Health, that the right to refuse unwanted
medical treatment is protected by the Constitution."
...and...
"* The federal Patient Self-Determination Act of 1990 requires that
all Medicare and Medicaid provider facilities inform patients of their
respective state law rights to make health care decisions, including
the right to accept or refuse care and the right to formulate advance
directives."
...and also...
"The U.S. Supreme Court has recognized that a competent person (a
patient with the decisional capacity to make life and death decisions)
has a constitutionally protected liberty interest in refusing unwanted
medical treatment, including the right to refuse life-sustaining
nutrition and hydration. Thus, an adult with decisional capacity may
choose to forgo medical treatment, even if that choice results in
death.
The right to choose to forgo life-sustaining treatment is not
absolute. Courts may balance a patient’s right to die with several
countervailing state interests that may provide a basis for overriding
a patient’s choice."
Patient Rights
http://216.239.39.100/search?q=cache:NPC0Wt5YQ3sC:www.lawyers.com/lawyers-com/content/aboutlaw/health_6.html+%22refuse+treatment%22+patient+rights&hl=en&ie=UTF-8
The page mentions several specific cases dealing with patient's rights
and informed consent, most notably, one of the earliest court cases
dealing with these issues, Schloendorff v. Society of New York
Hospital (1914), in which New York Justice Cardozo wrote, in finding
for the plaintiff (who had been subjected to surgery against her
express wishes):
"Every human being of adult years and sound mind has a right to
determine what shall be done with his own body. . . [W]e see no reason
why a patient should not be allowed to make an informed decision to go
outside currently approved medical methods in search of an
unconventional treatment. . . [W]e believe that an informed decision
to avoid surgery and conventional chemotherapy is within the patient's
right to determine what shall be done with his own body."
Schloendorff v. The Society of the New York Hospital
http://wings.buffalo.edu/faculty/research/bioethics/schloend.html
In 1985, in Tune vs. Walter Reed Army Medical Hospital, the court
wrote:
"It is now a well-established rule of general law, as binding upon the
government as it is upon the medics, profession at large, that it is
the patient not the physician, who ultimately decides if treatment -
any treatment is to be given at all… The rule has never been qualified
in its application by either the nature or purpose of the treatment,
or the gravity of acceding to or forgoing it."
[Source: Tune vs. Walter Reed Army Medical Hospital, 602 Federal
Supplement, p. 1455 (1985) - no web link available ]
Similarly, in 1990, US Supreme Court Chief Justice William Rehnquist
wrote, in his opinion affirming the Missouri Supreme Court's decision
not to allow the parents of Nancy Cruzan to discontinue her feeding
tube (you may remember this case from the news) in CRUZAN v. DIRECTOR,
MISSOURI DEPARTMENT OF HEALTH:
" The Fourteenth Amendment provides that no State shall "deprive any
person of life, liberty, or property, without due process of law." The
principle that a competent person has a constitutionally protected
liberty interest in refusing unwanted medical treatment may be
inferred from our prior decisions."
(It was held that since Ms. Cruzan had not expressly refused
treatment, neither could it be denied to her without her consent.)
881503OPINION v. DIRECTOR, MISSOURI DEPT. OF HEALTH
http://supct.law.cornell.edu/supct/html/88-1503.ZO.html
(This opinion offers a wealth of case law relating to informed consent
and a patient's right to refuse treatment, and nearly all of the cases
are hyperlinked from this page. They are too numerous to list here,
but all are easily found within Justice Rehnquist's opinion, and many
support your stance.)
In Tina Harrell vs. St. Mary's Hospital, Inc., 15th Judicial Circuit
Court of Appeals held that:
"Patients do not lose their right to make decisions affecting their
lives simply by entering a health care facility. Despite concededly
good intentions, a health care provider's function is to provide
medical treatment in accordance with the patient's wishes and best
interests, not as a "substitute parent" supervening the wishes of a
competent adult."
Your Right To Refuse Medical Treatment or Testing
http://www.angelfire.com/biz3/gatheringplace/rights.html
WorldLaw Direct notes:
"Q: Do I have a right to refuse medical treatment?
A: Yes. Courts have repeatedly said that a competent adult patient has
the right to refuse treatment, even if his or her family or doctors
may wish the patient to receive it. It is you who must decide."
WorldLaw Direct
http://www.worldlawdirect.com/article/666/Do_I_have_a_right_to_refuse_medical_treatment%3F.html
As expertlaw-ga notes below, much of your dilemma's resolution rests
on which state you are in. Some states do not recognize Living Wills
(also known as Advance Directives), which allow a patient to set forth
in writing his or her wishes regarding medical treatment. Others,
such as New York and Florida, do.
In Florida, it is held that:
"Every competent adult has the fundamental right of self-determination
on decisions about his or her own health, including the right to
accept or refuse medical treatment. This right to refuse medical
treatment includes the right to refuse treatment even when the patient
would die without the treatment."
[source below]
The Florida Department of Elder Affairs has put together a
comprehensive explanation of how Advance Directives work there:
Advance Directives
http://elderaffairs.state.fl.us/doea/markjune/advanced1.html
A note:
To reiterate something noted above:
"The right to choose to forgo life-sustaining treatment is not
absolute. Courts may balance a patient’s right to die with several
countervailing state interests that may provide a basis for overriding
a patient’s choice."
Each situation is different. A court may determine (if the patient's
son files for a court order mandating that his parent receive the
treatment regardless of his/her wishes) that the right of the patient
to choose his/her own medical treatment is outweighed by the rights of
the family or state.
To legally ignore the patient's express wishes, the hospital or the
family members must obtain a court order - as expertlaw notes, this is
typically via obtaining a guardianship, and requires that the son go
to court to establish that his parent is not competent to make his/her
own medical care decisions.
Refusing to honor the patient's wishes simply because a family member
has threatened to sue does not hold up under scrutiny - given the
volumes of case law available regarding informed consent and patient's
rights, it would appear that if the doctor were to fear being sued for
"gross negligience" by anyone, it would be the patient he should fear
the most. Without a court order, the physician has no legal standing
to violate his patient's right to choose for herself what may and may
not be done to her body.
I hope you've found this information helpful. If you need further
assistance, please ask and I will be happy to help.
--Missy |
,
1 Comment
)