DOES THE LAW REGULATE THE REFUSAL OF MEDICAL TREATMENT IN THE SAME WAY ACROSS COUNTRIES?

This article is written by Dharshini, an intern under Legal Vidhiya

ABSTRACT:

In this Article, a brief study about the laws on refusal to medical treatment in different countries are been discussed. Particularly how the legal status of right to refusal to medical treatment varies in some cases and how they are similar in certain cases in countries like India, United States of America and United Kingdom are discussed. A brief explanation whether refusal to medical treatment is a right or not is given. Many pronouncements and judgements of various landmark cases in these countries are also discussed.

KEYWORDS: Refusal to Medical Treatment, Consent to medical treatment.

RIGHT TO REFUSAL TO MEDICAL TREATMENT  

All the Human beings who have attained the age of majority and who are mentally capable, possess the right to protect their body from serious health problems by availing best medical treatment. Also every capable adult has the freedom to reject or deny medical treatment which might be unnecessary or not satisfactory for them. Even when forgoing treatment might put them at risk of death, this is a part of everyone’s freedom to decide what will be done to their own body. Everyone, including those who are able to make medical decisions for themselves, possess the right to refuse treatment. The only distinction is how we safeguard the rights of those who cannot^[1].Therefore every individual has the right to refuse medical treatment at their disposal. For a variety of reasons, a person could choose not to receive a prescribed medical treatment. Some people might not want blood transfusions because of their religious beliefs. Others choose not to undergo a prescribed treatment because they believe it to be excessively risky, expensive, or unlikely to return them to a standard of living they can enjoy or accept, even if it were to work. Many people do not want life-sustaining procedures like ventilators or feeding tubes if those procedures will simply hasten their demise^[2]. The ability to decline medical care does not guarantee that a decision to do so would be upheld without an issue. When a patient declines a prescribed course of treatment, it shows that they and the doctor have different viewpoints on the situation. It is not the patient’s responsibility to merely “go along” with the advice given. Instead, it is up to the patient to weigh all of his or her alternatives and select the one that is right for them. What is important from a medical perspective cannot be important from the patient’s perspective since goals and values can vary. The patient’s wishes come first as long as they have received all pertinent information regarding his or her treatment options and are aware of the advantages and disadvantages of each, including those of foregoing treatment^[3].

REFUSAL TO MEDICAL TREATMENT IN INDIA.

One of the most important issues in medical therapy is the factor of consent. Under the Indian Constitution, Article 21 guarantees the patient has a legal right to autonomy and self-determination. Except in an emergency, where the doctor need not seek permission before treating, he has the right to deny treatment. The consent granted must be legitimate in law. Unauthorized medical treatment will subject the treating physician to civil and criminal liability. Since the doctor is assumed to be in a dominant position under the law, consent should only be requested after all required information has been provided^[4].

The term “personal liberty” as used in Article 21 has the broadest scope and refers to a wide range of rights, including the right to live in dignity and all that entails as well as any act that interferes with a person’s ability to use a limb or other faculty, either permanently or temporarily. Despite the fact that Indian courts have frequently referred to these ideas, the common law application of consent has not yet been fully evolved in India. The Indian Contract Act and the Indian Penal Code’s guiding principles must, of course, be consulted in such circumstances. A contract between persons with the legal capacity to enter into contracts and create contractual obligations exists between a medical professional and his or her patient^[5].

Naturally, the consent gained after receiving the pertinent information will have its own set of operating parameters to provide protection for the medical professional. Beyond these limits, the doctor would be treating the patient at his own risk because it is believed that there is no consent at all for such treatment, because he was acting without the patient’s agreement. In the case Maneka Gandhi v Union of India a doctor who continued treating a patient in order to safeguard the patient’s interests was held accountable^[6].

REFUSAL TO MEDICAL TREATMENT IN USA.

In the United State of America, the Supreme Court has acknowledged in a number of rulings that the freedom to refuse medical treatment is covered by the Due Process Clause. However, the Court has insisted that this right must be weighed against pertinent to governmental objectives, such as the preservation of the public’s health, safety, and life. The Court upheld a Massachusetts law permitting municipal public health officials to mandate smallpox immunization in Jacobson v. Massachusetts. While the petitioner in Jacobson claimed that the legislation requiring vaccinations violated his freedom to take care of his own body and health whatever it seemed best to him, the Court emphasized that the state’s interest in preventing the spread of disease was of the utmost importance^[7].

The extent of a prisoner’s freedom to refuse antipsychotic medication has also been covered by the Supreme Court. In Washington v. Harper, for instance, the Court reviewed a petitioner’s constitutional challenge to a state prison rule that, under some circumstances, enabled involuntary psychotropic drug therapy for prisoners with mental illness. The Court’s majority came to the conclusion that the policy was legal despite noting the petitioner’s considerable liberty interest in rejecting these drugs under the Fourteenth Amendment’s Due Process Clause^[8].

REFUSAL TO MEDICAL TREATMENTIN UK.

In the United Kingdom, reasoned medical decision-making has traditionally been backed by UK courts, and the Human Rights Act (HRA) appears to be continuing this trend. In NHS Trust v. D & Others, parents contested the medical staff’s determination that providing palliative care rather than ventilating a seriously ill and impaired child was in the kid’s best interests. The intervention would cause more agony and suffering than the minimum quality of life he would have for a little period of time, according to the professional opinion, which the court agreed with. This ensured that both the right to life guaranteed by Article 2 of the European Convention on Human Rights (ECHR) and the right to a dignified death guaranteed by Article 3 of the ECHR, which includes the right not to suffer cruel or inhumane treatment, would be upheld. When a dispute arises between the parents themselves, the court will likewise use this strategy—looking at the child’s overall best interests—as its guiding principle^[9].

Parents may attempt to rely on the right to private and family life under Article 8 and the right to display religion under Article 9 of the ECHR where objections to medical treatment are based on religious convictions. The ability to preserve the rights and freedoms of others, in this case the child, may be depended upon to support medical judgements given the dedication to the sanctity of life and best interest considerations displayed in prior cases^[10].

However, it’s crucial to remember that national courts have underlined the significance of incorporating parents in the decision-making process. Ex parte: R v. Portsmouth Hospitals NHS Trust, the ideal situation is for parents and doctors to come to an understanding in an atmosphere of full disclosure, dialogue, discussion, and compromise. But, in cases when this is no longer possible, the court should make the decision. If parental advice does not agree with a doctor’s assessment, it may be ignored. The HRA does give a considerably stronger method by which families may contest any perceived lack of participation in the decision-making process, according to Strasbourg case law^[11].

CASE LAWS ON REFUSAL TO MEDICAL TREATMENT.

In Indian Medical Association vs V.P. Shantha & Ors^[12] on 13 November, 1995 it was held that, the fundamental rights of the competent patient to comprehend his/her treatment and to accept or reject it have long been recognised. Consumerism is now firmly established in medical practice, and the British government has fostered this by introducing “charters” on a large scale. Further held that aside from cases of medical malpractice, courts are generally unwilling to become involved in medical situations. After ten years, what was previously seen as a legal threat to medicine has vanished. The court will acknowledge a patient’s absolute right to refuse medical care, but they will also refrain from telling doctors what kind of care to administer. In fact, there is a possibility that the pendulum has swung too far in favour of therapeutic immunity, if anything.

In the case of Sharda vs Dharmpal^[13] on 28 March, 2003 a request for a declaration from the patient to the High Court would be useless if they are competent and refuse to provide their permission to the treatment. The patient’s recommendations in this case should be documented. Hospital administrators should request unequivocal assurances from the patient (to be documented in writing) that the refusal represents an informed decision, meaning that she is aware of the risks and likely prognosis associated with the proposed treatment and is aware of its nature and reasons. It should also be stated in writing if the patient refuses to sign a written statement of their rejection. Such a written declaration just serves as a record for legal evidence. It should not be mistaken for or taken to be a disclaimer.

In the case Samira Kohli vs Dr. Prabha Manchanda & Anr^[14] on 16 January, 2008 the court held that the patient will be given “adequate information” by the doctor (or a member of his team) who is treating him or her, and this information should be sufficient for the patient to make an informed decision about whether to submit to the particular treatment or not. This means that the doctor should explain (a) the type and method of the treatment, as well as its goals, advantages, and effects; (b) any viable alternatives; (c) an explanation of the significant risks; and (d) the negative effects of foregoing therapy. However, there is no need to go into detail about hypothetical or far-off hazards, which could scare or perplex a patient and cause them to decline the required treatment.

In the case Common Cause (A Regd. Society) vs Union of India^[15] on 9 March, 2018 the notion of informed consent has the logical implication that patients generally have the freedom to refuse to consent, or to refuse treatment. Only a small fraction of treatment decisions involved the freedom to refuse. In the majority of the earlier cases, patients denied medical care that was against the dictates of their religious convictions, invoking both First Amendment and common law self-determination rights. However, situations regarding the right to refuse life-sustaining treatment have increased recently due to advancements in medical technology that can preserve life much past the point at which natural forces would have brought about inevitable death in prior times. A patient (terminally sick or in a persistent vegetative state) exercising the right to reject treatment may fervently desire to live but may also choose to be free from any medical operations, medications, or treatments of any type in order to avoid prolonged physical pain. Any such person who is of legal age and of sound mind has the option to decline medical care. Compared to euthanasia, physician-assisted suicide, or even suicide, this right has a higher status.

In Cruzan v. Director, Missouri Department of Health^[16], The Supreme Court debated whether a person who lacks mental capacity had a constitutional right to refuse hydration and sustenance that could save their lives. The case concerned a lady who was in a persistent vegetative condition and her parents’ request to stop using the feeding and hydration equipment that kept her alive. It also concerned the woman’s substantive due process rights. The Court was asked to decide whether it was lawful for Missouri to demand that the family members present persuasive proof of the woman’s want to stop receiving life support before complying with their request.

CONCLUSION.

In this Article we discussed about the legal scenario of right to refusal to medical treatment in the countries India, USA and UK. Some countries are still developing in regard to this field they have not evolved to the fullest conclusion yet. While some countries have pronounced the right to refusal to medical treatment is a basic right vested to its citizens. We have also discussed many case laws which help us to understand the developing trend in this matter of refusal to medical treatment across countries.

REFERENCES.

1. Right to Refuse Treatment, Vermon Ethics Network, available at https://vtethicsnetwork.org/medical-ethics/right-to-refuse-treatment last seen on 07-05-2023.
2. Consent and medical treatment: The legal paradigm in India, National library of Medicine, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779959/#CIT7 last seen on 07-05-2023.
3. Constitution Annotated, Right to Refuse Medical Treatment and Substantive Due Process, available at https://constitution.congress.gov/browse/essay/amdt14-S1-6-5-1/ALDE_00000903/#:~:text=State.%20)%3B%20id.-,at%20331%20(Stevens%2C%20J.%2C%20dissenting)%20(%20%5B,of%20the%20Fourteenth%20Amendment.%20) last seen on 07-05-2023.
4. BMJ Journals, Comment on Re B (Adult: Refusal of Medical Treatment) [2002] 2 All England Reports 449, available at  https://adc.bmj.com/content/89/5/460 last seen on 07-05-2023.
5. Indian Medical Association vs V.P. Shantha.
6. Sharda vs Dharmpal, AIR 2003 SC 3450, 2003 (3) ALT 41 SC
7. Samira Kohli vs Dr. Prabha Manchanda & Anr, Appeal (civil) 1949 of 2004.
8. Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990).

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^[1] Right to Refuse Treatment, Vermon Ethics Network, available at https://vtethicsnetwork.org/medical-ethics/right-to-refuse-treatment last seen on 07-05-2023.

^[2] Right to Refuse Treatment, Vermon Ethics Network, available at https://vtethicsnetwork.org/medical-ethics/right-to-refuse-treatment last seen on 07-05-2023.

^[3] Right to Refuse Treatment, Vermon Ethics Network, available at https://vtethicsnetwork.org/medical-ethics/right-to-refuse-treatment last seen on 07-05-2023.

^[4] Consent and medical treatment: The legal paradigm in India, National library of Medicine, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779959/#CIT7 last seen on 07-05-2023.

^[5] Consent and medical treatment: The legal paradigm in India, National library of Medicine, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779959/#CIT7 last seen on 07-05-2023.

^[6]Consent and medical treatment: The legal paradigm in India, National library of Medicine, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779959/#CIT7 last seen on 07-05-2023.

^[7] Constitution Annotated, Right to Refuse Medical Treatment and Substantive Due Process, available at https://constitution.congress.gov/browse/essay/amdt14-S1-6-5-1/ALDE_00000903/#:~:text=State.%20)%3B%20id.-,at%20331%20(Stevens%2C%20J.%2C%20dissenting)%20(%20%5B,of%20the%20Fourteenth%20Amendment.%20) last seen on 07-05-2023.

^[8] Constitution Annotated, Right to Refuse Medical Treatment and Substantive Due Process, available at https://constitution.congress.gov/browse/essay/amdt14-S1-6-5-1/ALDE_00000903/#:~:text=State.%20)%3B%20id.-,at%20331%20(Stevens%2C%20J.%2C%20dissenting)%20(%20%5B,of%20the%20Fourteenth%20Amendment.%20) last seen on 07-05-2023.

^[9]BMJ Journals, Comment on Re B (Adult: Refusal of Medical Treatment) [2002] 2 All England Reports 449, available at  https://adc.bmj.com/content/89/5/460 last seen on 07-05-2023.

^[10]BMJ Journals, Comment on Re B (Adult: Refusal of Medical Treatment) [2002] 2 All England Reports 449, available at  https://adc.bmj.com/content/89/5/460 last seen on 07-05-2023.

^[11] BMJ Journals, Comment on Re B (Adult: Refusal of Medical Treatment) [2002] 2 All England Reports 449, available at  https://adc.bmj.com/content/89/5/460 last seen on 07-05-2023.

^[12]Indian Medical Association vs V.P. Shantha & Ors 1996 AIR 550, 1995 SCC (6) 651

^[13] Sharda vs Dharmpal, AIR 2003 SC 3450, 2003 (3) ALT 41 SC

^[14] Samira Kohli vs Dr. Prabha Manchanda & Anr, Appeal (civil) 1949 of 2004

^[15] Common Cause (A Regd. Society) vs Union of India, WRIT PETITION (CIVIL) NO. 215 OF 2005

^[16] Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990).