Right to Refuse Treatment

The right of an individual to accept or refuse medical treatment is firmly established as both a constitutionally protected right and as a well-grounded principle of common-law. In 1914, New York's highest court held that "Every human being of adult years and sound mind has a right to determine what shall be done with his own body." In recent years the United States Supreme Court has found a constitutional basis for such a right in the federal right to privacy and in the due process protections of the Fourteenth Amendment. The United States Supreme Court has also held that the fundamental common-law concepts of informed consent and of battery, which prohibits even a touching of one person by another without consent and without legal justification, are valid foundations for protection of this right.

Early court decisions discussing informed consent emphasized the need for complete disclosure by the physician, not the right of the patient to make the decision. As the concept of informed consent has evolved throughout this country, the focus has shifted away from the paternalistic view that the patient should make an informed decision to comply with the physician's recommendation, to the notion that an informed patient may reasonably make a decision to refuse treatment advocated by the health care provider.

The right of self-determination is one that may be exercised by adult patients with the capacity to make treatment decisions, as well as by an appropriate surrogate decision-maker for a patient who lacks decisional capacity. Identification of a surrogate decision-maker is subject to state law, as is the standard that the surrogate should apply when making the decision, i.e., substituted judgement or best interests. Further, each state is responsible to determine the sufficiency of the evidence necessary to make these difficult decisions. In Missouri, for example, patient's wishes is necessary before a surrogate decision-maker may exercise the patient's right to refuse medical treatment.

Most states have statutory and/or case law that establishes the need for obtaining the informed consent of the patient/decision maker for certain health care decisions. In Pennsylvania, the relevant statue requires a physician to obtain the informed consent of the patient or the patient's authorized representative prior to performing certain specified treatments and procedures. The physician must describe the treatment or procedure as well as the risks and alternatives that a reasonably prudent patient would require to make an informed decision regarding that treatment or procedure.

Underlying the reasoning in all of these laws and cases is the assumption that an adult patient with capacity naturally wishes to be fully informed about and involved in his or her own health care decision making to another individual, and the patient's choice in this regard should be honored. Where, as here, the physician is advised that the patient does not want to participate in this process, the physician must ascertain that this is, in fact, the patient's wish. The physician should begin the informed consent discussion by questioning the patient regarding whether he will be his own decision-maker, or whether he wishes to delegate this role to his daughter. The discussion should be thoroughly documented in the chart. Ideally, the patient should advise his daughter of his decision in the presence of the physician and perhaps another witness. The physician may then proceed to obtain informed consent for treatment decisions from the daughter if that is clearly the patient's preference.