REFUSAL OF MEDICAL CARE AND THE LAWS BEHIND IT

Spread the love

Post Views: 279

This article is authored by Ms. Aparna Gupta of University Law College, Bangalore, an intern under Legal Vidhiya.

Medical business in India is a highly regulated sector of business. This is because the lives of millions of people are dependent on the healthcare facilities they get. No nation can grow, if the healthcare services are not properly administered to them. There are various laws governing the business as a whole. There are Acts and Rules governing the conduct of medical professionals (Doctors, Nurses, etc.), the conduct of hospitals, sale of drugs or medicines; every aspect of medical business is thoroughly regulated. All of these laws ensure that no patient’s life is brought at risk by the hospital authorities.

Alfred Tennyson has stated that no life that breathes with human breath has ever truly longed for death. Ernest Hemmingway in “The Old Man and the Sea” has expounded that man can be destroyed but not defeated. It implies that life with dignity is an unacceptable defeat and life that meets death with dignity is a moment to celebrate and aspire for. The question is, in such a case can a patient be left without any cure? Does a patient even have the right to refuse medical treatment?

Consider the Covid Vaccine, it was left up to the citizens’ wishes to get one. People had an option to take it or leave it. Similarly, free Polio Drops and Vaccines were available and people could choose to take it or leave. Thus, the concept of refusal of treatment has always been with us. Let us know more about it in this article…

Patients’ Right to Refuse Medical Treatment

A “patient” can be any person who visits any hospital, clinic or such other place in lieu of some ailment to get cured or treated for the same. Every patient has certain Rights guaranteed to him/her by enactments like Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulation, 2002; Consumer Protection Act, 1986; Indian Penal Code,1860 and CrPC.

There is no specific legislation dealing with the Rights of patients. However, every patient has certain Rights provided to him/her by the Patients’ Charter of NHRC. Some of which are as follows:

Right to Information: Every patient has a right to be informed about their disease, the treatment, the complications etc. in words understandable by them.
Right to Records and Reports: They also have a right to go through their case reports, patient records, test results within 24 – 72 hrs of discharge[1].
Right to Confidentiality, Human Dignity and Privacy: Every patient has a right to have their details to be kept confidential; safe from data theft and leakage. It should not be disclosed to anybody unless extremely important.
Right to Second Opinion: A patient can get another doctor to look for the ailment and suggest treatment accordingly. The hospital has to give all the due information in virtue of the same.
Right to Informed Consent: The doctor has to take the consent of the patient to carry out any procedure. This allows the patient to weigh all the pros and cons of a certain procedure and make an informed decision. Unconsented procedures may lead to criminal liability on the hospital.
Right to Non-discrimination: No patient can be discriminated on the basis of their gender, caste, income etc.
Right to Emergency Medical Care[2]: No patient can be refused treatment for no valid reasons in time of emergency by any hospital (public or private).

RIGHTOF REFUSAL:

The Right to Informed Consent implies that every patient has to consent to treatment only after he/she is well-aware of the disease, its causes and treatment thereof. The on-duty doctor or nurses are obliged to let the patient know such treatment and the consequences/ side-effects thereafter. The patient should only make his decision after such information is provided to him. The consent from the patient has to be taken in writing, unless there is an emergency. If the patient himself/herself is not capable of consenting for reasons like being a minor, mentally unstable person, or someone in coma and so on, then the guardian of such patient must consent to the same.

This Right implies that the patient may agree to continue with the procedure or refuse to do so. The Right to informed consent and The Right to Opt for Alternative Medical Treatment include the Right of Refusal of care. The Right of refusal of care is the right of a patient to deny a certain medical procedure to be followed and that decision of the patient is binding on the doctors. The Right to refusal of a patient is a choice made by the patient to be respected by the on-duty doctors, except in cases of emergency.

A patient who is terminally ill or in a vegetative state from a long time before such state may make a living will, choosing to refuse treatment to end his/her suffering in the future. The act of the patient in refusing treatment allows for the disease to take its general recourse, which may even lead to death. It is not suicide or euthanasia, but the effect of the disease which causes death. The Right to refuse medical treatment is more of a way to protect a patient from unwanted medical procedures.

LAWS SUPPORTING THE RIGHT OF REFUSAL OF TREATMENT

Art. 21 of the Constitution of India provides for the patient’s right to refuse treatment.[3]
Right to Choose Alternative Treatment Options under the Patients’ Charter provides for the right to refuse treatment after analysing all the benefits and risks involved in a certain medical procedure.
Sec.5 of Mental Health Care Act, 2017 provides for every person who is of age and of sound mind to decide the way such person’s mental illness is to be treated. This has to be done through an Advance Medical Directive given in writing in presence of two adult witnesses.
According to the 196th Report on Medical Treatment to Terminally Ill Patients (protection of patients and medical practitioners) of the Law Commission every patient of sound mind and age has the right to refuse treatment provided that it increases his life expectancy.

CASES WHERE RIGHT OF REFUSAL OF CARE HAS BEEN DISCUSSED:

Airedale NHS v. Bland[4]: The House of Lords while discussing many issues, one being about the refusal of treatment by a patient, observed that a patient has an absolute right to refuse medical treatment even at the cost of his/her life. “Where before becoming unconscious or mentally incapable of giving consent to treatment the patient has unequivocally declined the treatment in question, the doctor has no right to give it.”

In Re. T,[5] T was a pregnant woman who had come to the hospital after an accident. While she was admitted, after a private talk with her mother, she refused the blood transfusion considering it a sin. Transfusion of blood was considered a sin amongst the Jehovah’s witnesses. She had also signed the refusal form during her caesarean surgery. But, due to certain complication she had to get a blood transfusion. Despite her explicit will to not go through the procedure, the doctor did the procedure. The action of the doctors was claimed to be against the woman’s Right to Refusal of Medical Treatment. The Court of Appeal held that it was necessary to do so, to save the woman’s life and was in her “best interests.”

In Schloendorff v. New York Hospital[6], the Court of Appeals rightly pointed out that, every human being who is of age and of sound mind has a right to determine what shall be done with his/her own body and the surgeon is bound by that choice. If any surgeon performs any procedure on the patient without his/her consent then the doctor is said to commit assault and is held liable for the same.

Mallette v. Shulman[7] – The Court observed ― “A competent adult is generally entitled to reject a specific treatment or all treatment, or to select an alternative form of treatment even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community …. it is the patient who has the final say on whether to undergo the treatment.”

“Sound mind”

Being of age and of sound mind is necessary to make a decision. If a patient is a minor, then his/her consent is not valid. Then, the guardian of a minor has to make a decision for the patient. The same is the case of mentally unsound patients.

For example, in Re. T case, the woman was under the effects of drugs and then was influenced by her mother right after. The refusal of the treatment by her was in a state of unconsciousness and thus, invalid. So, the action of the doctors was held to be right in lieu of saving her life.

In Re. MB (Medical Treatment)[8], it was held that if a person suffers from some impairment or disturbance of mental functioning, which makes the patient incapable of giving consent, then the consent of such a person is invalid. Even when a person of unsound mind gives consent under undue influence, it is not a valid consent.

Mature Minor Doctrine[9]

As per this doctrine, a minor who is wise enough to understand the consequences of his/her act is deemed to have given a valid consent and the doctors are bound by the same.

How is the Right to Refuse Treatment Different from Euthanasia?

The two may seem similar, as both allow for a patient to die. Right to refuse treatment allows for the treatment to be stopped if the patient or his guardian wishes so; if in a vegetative state, the patient shall die. Else, he/she can refuse and go for alternative options. In Euthanasia, a person is allowed to voluntarily die as per his/her or their family’s consent.

Right to refuse is under a patient’s right to self-determination, while euthanasia stems from the Right to die with dignity. Right to refuse a treatment is based on the concept of informed consent; doing what a person wishes to be done to his body. But euthanasia comes from the corollary of Right to live with dignity.

While discussing the issues in the case of Common cause v. UoI, the Hon’ble Supreme Court observed that advance medical directive and the right to refuse treatment allows for the treatment to be stopped, making the disease take its natural recourse, sometimes leading to death. The idea of the Right to refuse treatment is to protect the patient from unwanted medical procedure and is more about self-determination.

Does a doctor have a Right to Refuse Care to a patient?

The Code of Medical Ethics Regulations, 2002, Sec.2.1.1 begins with the words “though the physician is not bound to treat each and every person coming to him”. The section also provides that no patient who is in emergency need of care be refused arbitrarily. In Paschim Banga Khet Mazdoor Samity and Ors v State of West Bengal[10], the Court ruled that government hospitals run by the states are bound to extend medical care. Failure to do so results in the violation of Art.21.

As per Sec. 26 of the National Medical Commission Registered Medical Practitioner (Professional Conduct) Regulations, 2022, a doctor has a right to choose who he wants to serve. Thus, a doctor can legally refuse a person, except in case of medical emergencies.

CONCLUSION

Thus, a patient has a right to refuse treatment. This right is given only to people aged 18 and above, who are mentally sound. The refusal must be given in writing. The patients also have an option to sign an Advance Medical Directive when they are of sound mind, seeking to refuse any treatment upon reaching vegetative state. Right to refuse treatment is NOT EUTHANASIA! Right to refuse treatment is based on the right of self-determination allowing a person to decide what is done to his/her body. Even, the doctors have the right to refuse treatment to any patient, except when the patient’s life in under threat.

REFERENCES