SAYING NO TO MEDICAL CARE Joseph A. Smith The right to refuse medical treatment by competent adults is recognized throughout the United States. See Cavuoto v. Buchanan Cnty. Dep t of Soc. Servs., 605 S.E.2d 287 (Va. App. 2004); Mack v. Mack, 618 A.2d 744 (Md. 1993); Canterbury v. Spence, 464 F.2d 772, 788 (D.C. Cir. 1972). Whether it is an individual wearing a Do Not Resuscitate bracelet or someone refusing cancer treatment or a blood transfusion, the proposition that competent adults can refuse medical care and treatment has long been established. Scholendorff v. Soc y of New York Hosp., 105 N.E. 92, 93 (N.Y. 1914) ( Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient s consent commits an assault, for which he is liable in damages. ). The right to refuse treatment originally arose from the principle of informed consent and the requirement that before a physician or surgeon could treat a patient, the patient must give their consent. See id.; Mack v. Mack, 618 A.2d 744; Stouffer v. Reid, 993 A.2d 104 (Md. 2010). 73
Over time the right to refuse treatment has found a more constitutional basis. Initially, a few state courts found basis for rejecting medical treatment in the right to privacy outlined by the U.S. Supreme Court in Griswold v. Connecticut, 381 U.S. 484 (1965) and Roe v. Wade, 410 U.S. 113 (1973). See In re Quinlan, 355 A.2d 647 (N.J. 1976); Belchertown State Sch. v. Saikewicz, 370 N.E. 2d 417 (Mass. 1977); Rasmussen v. Fleming, 741 P.2d 674 (Ariz. 1984). The Supreme Court has strongly suggested, without outright stating, that the right to refuse medical treatment is protected as a liberty under the Due Process Clause. Washington v. Glucksberg, 521 U.S. 702, 709 (1997); see Cruzan v. Director, Missouri Dep t of Health, 497 U.S. 261 (1990). Cruzan upheld the Supreme Court of Missouri s holding to prevent a family from taking their daughter off of life-support. Cruzan, 497 U.S. 261. The Missouri Supreme Court had found that without clear and convincing evidence of the daughter s wishes there was insufficient evidence to support the parents claim to substitute judgment for their vegetative daughter and outweigh the State s interest in preserving life. Id. at 269. The Supreme Court upheld the Missouri ruling reasoning that the State was not required to substitute the judgment of the parents in place of the actual patient s judgment and that a clear and convincing evidence requirement when a guardian wished to terminate life support for a patient was justified by the State s interest in preserving 74
life. Id. at 284-86. Although the Supreme Court upheld the Missouri court s decision in regards to the termination of treatment for an incapacitated and incompetent patient, it recognized that 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 out prior decisions. Id. at 278 (emphasis added). Such a statement strongly suggests that the right for a competent person to refuse treatment is protected under the Fourteenth Amendment, a view that was reaffirmed in Washington v. Glucksberg. 521 U.S. at 709 ( We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment. ). One of the more common, or at least more well known, reasons for a patient to reject medical treatment is for religious reasons. See In re Boyd, 403 A.2d 744 (D.C. 1979). In In re Osborne, 294 A.2d 372 (D.C. 1972), the D.C. Court of Appeals reviewed the case of a hospital petitioning for judicial intervention to allow it to perform a blood transfusion on a patient. The patient had been admitted to the hospital after a tree fell on him, causing injuries and internal 75
bleeding. Id. at 373. After the patient was examined it was determined he required a blood transfusion. Id. However, citing his religious beliefs as a Jehovah s Witness, the patient refused the transfusion. Id. The patient s wife, as well as many other members of his family, refused to consent to the treatment on his behalf, also citing their religious faith. Id. Unable to receive consent, the hospital petitioned the court to order the transfusion, however the trial court, after holding an initial hearing at the patient s bedside, denied the petition. Id. at 373-74. The court affirmed the denial of the order after finding there was not a compelling state interest in the preservation of the man s life under the circumstances to outweigh the clear wishes of the man to refuse the blood transfusion based on his religious convictions. Id. at 375 The right to refuse medical treatment is not lost simply because a patient is no longer competent. See In re K.I., 735 A.2d 448, 460 (D.C. 1999); In re Conroy, 486 A.2d 1209, 1229 (N.J. 1985). This right to refuse treatment was first extended to cover the right to end lifesupport for a patient in persistent vegetative state by the New Jersey Supreme Court in In re Quinlan, 355 A.2d 647 (N.J. 1976). In Quinlan, the court dealt with a father who wished to be appointed guardian of his 22-year-old daughter who was comatose and non-responsive. Id. The 76
doctors and medical experts determined that she was in a persistent vegetative state and would not survive without a respirator and needed a naso-gastro tube for feeding. Id. at 655-56. When the family requested the withdrawal of life-support the doctor in charge refused. Id. at 656. In ruling that the parents did have the right to remove their daughter from life-support, and that the father should be appointed guardian, the court relied heavily on the right to privacy finding that this right was broad enough to encompass a patient s decision to decline medical treatment under certain circumstances. Id. at 663. The court found that the patient s right to privacy, here asserted by her parents, outweighed the State s interest in preservation and sanctity of life and defense of the physician s right to administer medical treatment according to his best judgment. Id. at 664. In deciding that, it remanded the case to the lower court so the father could be appointed guardian and make the decision to withdraw life-support. Id. A more recent and famous case dealing with the termination of medical care for an incapacitated person was the Terri Schiavo matter in Florida in the early 2000s. Terri Schiavo was a Florida woman who in 1990 suffered cardiac arrest and, due to loss of oxygen to her brain before being revived, was left in a persistent vegetative state. In 1990, her husband Michael 77
Schiavo was appointed as her guardian. In 1998 Michael Schiavo sought to have Terri removed from life-supporting treatment over the objections of her parents, the Schindlers. After a lengthy trial and in 2000 the trial court found clear and convincing evidence that she was in a vegetative state and would have wanted to terminate treatment. See Schindler v. Schiavo, 916 So. 2d 814, 815 (Fla. 2d DCA 2005). After initially affirming the removal of the feeding tube, the Second District Court of Appeal of Florida required the trial court to review and reconfirm the medial science available to treat Ms. Schiavo. Id. The trial court reviewed the medical treatment as well as its initial decision that Ms. Schiavo was in a persistent vegetative state before reaffirming its original decision to allow Michael Schiavo to remove her feeding tube. Id. After the Florida Supreme Court struck down a newly passed law that was designed to stop the removal of Ms. Schiavo s feeding tube, the Second Court of Appeals again reaffirmed Ms. Schiavo s feeding tube should be removed in early 2005. Id. at 818-819. An act of Congress eventually allowed the case to reach the United States Supreme Court which denied the writ of certiorari after the lower federal courts had rejected the Schindler s petitions for an injunction. Schiavo, ex rel. Schindler v. Schiavo, 544 U.S. 945 (2005). The Florida court found that because Michael Schiavo successfully showed by clear and convincing evidence, as required by Florida law, that 78
Terri Schiavo would have wanted to terminate treatment, the feeding tube should be removed. Id. at 818-819. Although the Schiavo case attracted national attention and caused the passage of laws specifically for her case by both the Florida legislature and the United States Congress, it ultimately affirmed that both competent and incompetent people have a right to refuse treatment. Schindler v. Schiavo, 916 So. 2d at 815-816 While the right to refuse to medical treatment is recognized as fundamental on multiple grounds, it is not without limits. In determining whether a person, or someone with substituted judgment authority, shall be able to refuse medical treatment, a court generally considers four state interests: (1) the preservation of life; (2) the protection of interests of innocent third parties; (3) the prevention of suicide; and (4) the maintenance of the ethical integrity of the medical profession. Mack, 618 A.2d at 755 n.7; see Winchester Dep't of Soc. Servs. v. Roberts, 26 Va. Cir. 314, 319 (1992). While courts usually yield to the wishes of a competent adult, there are some instances when the treatment will be ordered if the state s interests outweigh the patient s, particularly in cases involving pregnancy or the birth of a child. See Jefferson v. Griffin Spalding Cty. Hosp. Authority, 274 S.E.2d 457 (Ga. 1981); Application of Jamaica Hosp., 491 N.Y.S.2d 79
898 (N.Y.Sup. 1985); Pemberton v. Tallahassee Memorial Regional Medical Center, 66 F. Supp. 2d 1247 (N.D. Fla. 1999); compare In re Baby Boy Doe, 632 N.E.2d 326 (Ill. App. 1994) (Court refusing to order Cesarean section that pregnant woman had refused). In Jamaica Hospital, for example, a judge held a bedside hearing in a hospital when a woman, 18-weeks pregnant, refused a blood transfusion on religious grounds even though she would die without it. 491 N.Y.S.2d at 899. The judge recognized the right of the woman to refuse medical treatment on the grounds of her beliefs; however, her life was not the only one at risk. Id. In this case, the State had a compelling interest in protecting the protecting the life of the innocent third-party, the unborn child, and this interest outweighed the mother s right to refuse medical treatment. Id. As such, the judge appointed a doctor at the hospital as special guardian of the child and ordered him to exercise his discretion to do all that in his medical judgment was necessary to save its life, including the transfusion of blood into the mother. Id. at 900. Additionally, there is an exception to the right to refuse treatment in the case of emergency treatment where the patient is unconscious in a hospital emergency room and is presumed to want the best available medical treatment. See Scholendorff, 105 N.E. at 93; Canterbury v. Spence, 464 F.2d 772, 788 (D.C. Cir. 1972) ( Two exceptions to the general rule of disclosure have been noted by the courts....the 80
first comes into play when the patient is unconscious or otherwise incapable of consenting, and harm from a failure to treat is imminent and outweighs any harm threatened by the proposed treatment. ) Even in these instances, doctors should attempt to secure a relatives consent if possible and time allows. See Caterbury, 464 F.2d at 788 (citing Bonner v. Moran, 126 F.2d 121 (D.C. Cir. 1941)). These limitations and interests of the State have led some jurisdictions, including Maryland and Virginia, to adopt laws to add protections for individuals who are no longer competent or in vegetative states. One method is through an advance health care directive that can state a person s wishes regarding medical treatment should they become incapacitated in which they may designate a person to execute the order. See Va. Code Ann. 54.1-2981 et. seq. (2012). Additionally, states can require clear and convincing evidence of what the disabled or incapacitated person would want if they were still competent to make their own medical decisions and a finding that the treatment or its refusal would be in the best interest of the patient. See Va. Code Ann. 37.2-1101; see Md. Code Ann., Est. & Trust 13-708 (2012); Md. Code Ann., Est. & Trust 13-711 to 713. These protections encourage individuals, and their attorneys, to be proactive in guarding against unwanted outcomes, such as receiving medical 81
treatment when it is unwanted or the withdrawal of treatment when the patient would have otherwise wanted it to continue. While the right to refuse treatment generally only receives attention in highly publicized cases, such as the Terri Schiavo matter or a child refusing treatment (or a parent refusing treatment on behalf of the child), it is a right that has been recognized for over a century in the United States. By working with a lawyer who specializes in trusts and estates or related areas of law, such as guardianships, to formalize their wishes regarding medical treatment in case of incapacitation, a person can help prevent disputes over what treatment he or she will receive and avoid judicial intervention. 82