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Report No. 196

(3) Adult patients' right of self determination and right to refuse treatment is binding on doctors if based on informed consent

(a) Competent patients' informed decision to have life support system, withheld or withdrawn when he becomes terminally ill, is binding on doctors in certain circumstances:

It is, however, settled that if a competent adult patient wants life support systems not to be withheld or withdrawn, that decision is binding on the doctors. However, if a patient suggests a particular form of medical treatment be administered to him which the doctors think is not appropriate, then the doctors, if they do not follow the directive of the patient, they are not guilty of any offence or wrong. If a competent patient wants life support system to be withheld or withdrawn, it is binding on the doctors unless they come to the conclusion that the patient's decision is not an 'informed decision' (As to what is an 'informed decision' we shall explain later). In such cases, the doctor has to take a decision in the 'best interests' of the patient.

(b) Incompetent patients: doctors to take decision for withholding or withdrawing treatment if it is in best interests of patient:

If the patient is incompetent and it is a fit case where, in the best interests of the patient, the life support system should be discontinued, if it is not discontinued, it may amount to battery. It was so observed in Airedale.

It is a well settled principle at common law that a patient has a right to accept medical treatament or refuse it. This is called the principle of selfdetermination.

In Airedale: 1993(1) All ER 821 (HL), Lord Goff of Chiveley stated that "it is established that the principle of self determination requires respect must be given to the wishes of the patient, so that if any adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged," it shall be obeyed. The doctors "must give effect to his wishes even though they do not consider it to be in the best interests to do so." This principle was first stated by Justice Cordozo in Schloendorff vs. Society of New York Hospital: (1914) 211 NY 125. It has since been accepted in almost all countries.

In Airedale: 1993(1) All ER 821 (HL), Lord Goff of Chiveley stated that "it is established that the principle of self determination requires respect must be given to the wishes of the patient, so that if any adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged." The doctors "must give effect to his wishes even though they do not consider it to be in the best interests to do so." This principle was first stated by Justice Cordozo in Schloendorff vs. Society of New York Hospital: (1914) 211 NY 125. it has since been accepted in almost all countries.

Lord Goff further stated that "there is nevertheless no absolute obligation upon a doctor who has the patient in his care to prolong his life, regardless of circumstances. Indeed, it would be most startling, and could lead to the most adverse and cruel effect upon patient, if any such absolute rule were held to exist. It is scarcely consistent with primacy given to the principle of self-determination in those cases in which the patient of sound mind has declined to give his consent."

Lord President (Lord Hope) of the Court of Sessions Inner House, in Law Hospital NHS Trust vs. Lord Advocate (Scotland): 1996 SLT 848 stated that where the patient was of full age and capable of understanding and was able to consent to the procedures if medical advice stated that the treatment was for his or her benefit, a patient could refuse treatment on the basis of the right to self-determination.

In Re T (Adult: refusal of medical treatment): 1992(4) All ER 649, the Court held that 'every adult had the right and capacity to decide whether he or she would accept medical treatment even at the risk of permanent injury to health or premature death, and regardless of whether the reasons for refusal were rational or irrational, or were unknown or non-existent.

But, where the decision to refuse was taken by a person who was not in a proper state of mind or did so under the influence of another person, then it may not bind the doctor. In Re T, the patient's decision not to receive blood transfusion after a caesarian operation was based more upon the influence of her mother who belonged to the sect called Jehovah's witnesses and was held not binding on the doctors.

In Canada, in Mallette vs. Shulman (1990) 72 OR (2d) p 417 (Ontario Court of Appeal) Robins JA stated (at p 432):

"The issue here is the freedom of the patient as an individual to exercise her right to refuse treatment and accept the consequences of her own decision. Competent adults, as I have sought to demonstrate, are generally at liberty to refuse medical treatment even at the risk of death. The right to determine what shall be done with one's body is a fundamental right in our society. The concepts inherent in this right are the bedrock upon which the principles of self-determination and individual autonomy are based. Free individual choice in matter affecting this right should, in my opinion, be accorded very high priority."



Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) Back




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