Judicial Enforcement of Lifesaving Treatment for Unwilling Patients

• Publication year: 2022

39 Creighton L. Rev. 849. JUDICIAL ENFORCEMENT OF LIFESAVING TREATMENT FOR UNWILLING PATIENTS

Creighton Law Review

Vol. 39

JOHN ALAN COHAN(fn*)

I. INTRODUCTION

An integral part of human autonomy is "the right to make choices pertaining to one's health, including the right to refuse unwanted medical treatment."(fn1) This right of refusal extends to all medical choices.(fn2) The weight of authority on this point is that a competent adult has the right to make choices to refuse medical treatment, however irrational or foolish that refusal may be. This notion is based on a common law right of self-determination, by which competent adults are generally permitted to refuse medical treatment, even at the risk of death.

In this Article we will explore the nature of the right to refuse medical treatment and what factors will justify a court in qualifying that right. We will examine cases in which courts have compelled medical procedures for minor children despite the refusal of the parents to consent. We will also examine situations in which courts have been asked to authorize lifesaving medical procedures against the will of competent adult patients. In addition, we will explore cases in which a patient refused to consent to medical treatment deemed necessary to save the patient's late-term fetus.

Since nonconsensual medical treatment may subject physicians and hospitals to liability for assault and battery, except in emergencies in which the patient is unconscious, the issue of an individual's refusal to consent to lifesaving medical treatment is invariably taken to the courts for resolution. Most of the cases involve hospitals and physicians that call upon the court to authorize the State, as parens patriae, to appoint a guardian or conservator to consent to the proposed medical treatment.

Our focus will be on competent adult patients who refuse to submit to a medical treatment. Competence is commonly defined to mean that the patient understands the risks and benefits of treatment and can make an informed decision to consent or refuse treatment.

As we will see, the right to refuse medical treatment has never been absolute. Courts have performed a balancing test to decide whether there is a compelling state interest that overrides a competent adult's refusal of medical treatment. Courts generally balance four state interests against the patient's rights of bodily autonomy: (1) preservation of life, (2) prevention of suicide, (3) protection of third party interests, and (4) maintaining the ethical integrity of the medical profession.(fn3)

Courts will engage in different value assessments of these state interests, with some courts finding that the right of autonomy is almost absolute, so that it will be a rare situation that persuades the court to authorize medical treatment against the patient's will.(fn4) In such instances, these courts will declare a patient's right of autonomy such that the patient's wishes must be honored even though minor children will be orphaned if the patient dies. At the other end of the spectrum are cases that emphasize the state's interest in preserving life and protecting the interests of third parties to justify overriding the patient's refusal to consent, particularly if the treatment is relatively noninvasive, such as a blood transfusion.

Other cases will authorize intrusive surgical procedures such as a cesarean section, to save the patient's life or that of a late-term fetus, or both, despite the patient's refusal to consent. Again, at the other end of the spectrum, some courts will refuse to override a patient's refusal of a cesarean section, or even a blood transfusion, even though her late-term fetus will be jeopardized as a result.

Generally, the state's interest in authorizing medical procedures weakens and the individual's right of autonomy grows as the degree of bodily invasion increases and the prognosis dims. For instance, courts are more likely to authorize blood transfusions to preserve life, overriding the patient's objections, compared to authorizing an amputation to preserve the patient's life when the chances of survival might not be great.(fn5)

We will also explore a line of cases that involves the mature minor doctrine, recognized in many states, which permits minors to exercise rights of medical autonomy on their own behalf. In such instances, the issue is whether a mature minor's refusal of lifesaving medical treatment should be overridden by the court.

The cases under discussion in this Article involve patients who, for the most part, wish to survive the medical crisis, but who simply refuse to consent to the procedure even though they understand death will likely result. As such, these patients are not seeking to hasten their death, a concept known as "antidysthanasia,"(fn6) but simply wish to adhere to their own convictions in the matter, whether based on fear of the procedure, religious beliefs, or other factors. In most instances, the patient's objection to the treatment is based on sincerely held religious beliefs. As we will see, courts generally evaluate these cases based on the patient's right of autonomy and find it unnecessary to reach the constitutional question of whether overriding the pa-tient's refusal in the matter would violate the Free Exercise Clause of the First Amendment.

A recurring issue in cases in which a patient is ordered to undergo a lifesaving procedure is that once the procedure has been administered, the case would seem to be moot for purposes of appellate jurisdiction. However, if an "issue presented is of substantial public interest," the following applies:

[A] well-recognized exception exists to the general rule that a case which has become moot will be dismissed upon appeal. . . . Among the criteria considered in determining the existence of the requisite degree of public interest are the public or private nature of the question presented, the desirability of an authoritative determination for the future guidance of public officers, and the likelihood of future recurrence of the question.

. . . . . . .

[P]ublic authorities must act promptly if their action is to be effective, and although the precise limits of authorized conduct cannot be fixed in advance, no greater uncertainty should exist than the nature of the problems makes inevitable. In addition, the very urgency which presses for prompt action by public officials makes it probable that any similar case arising in the future will likewise become moot by ordinary standards before it can be determined by this court. For these reasons the case should not be dismissed as moot.(fn7)

A separate matter not addressed here involves the power of courts to order or authorize discontinuation of artificial means of sustaining human life - life sustaining medical treatment ("LSMT"). These protocols are to prolong or sustain but not to save a patient's life. LSMT consists of such interventions as mechanical respirators to aid breathing or tubes to provide hydration and nutrition. LSMT is often associated with cases involving patients with a terminal illness or who are in a persistent vegetative state with little or no possibility of being restored to sapient functions. The medical technology involved may simply postpone death and carries high physical and psychological burdens and may also tend to detract from the patient's ability to undergo a humane, dignified death.(fn8) These situations usually involve incompetent patients who have not issued advance directives indicating their treatment choices regarding LSMT. Generally, the law seeks to protect the medical decision making rights of incompetent patients by allowing others to assert the rights on their behalf or by use of the substituted judgment doctrine.(fn9)

Other situations not addressed here involve forced sterilization procedures, which sometimes are granted after detailed fact-finding under strict procedural standards.(fn10) Other topics not addressed here pertain to nonemergency use of antipsychotic drugs on institutionalized mental patients who refuse them(fn11) and the forced administration of psychiatric drugs to prisoners.(fn12)

II. THE NATURE OF THE RIGHT OF AUTONOMY

The right of autonomy is based on the fundamental common law principle that a competent adult may refuse medical treatment even when the treatment is necessary to preserve the individual's life. The patient has the final say in matters with regard to medical consent, and "this must necessarily be so in a system of government which gives the greatest possible protection to the individual in the furtherance of his own desires."(fn13)

Perhaps a good starting point for exploring the right of autonomy is Union Pacific Railway Co. v. Botsford,(fn14) in which the Supreme Court said, "No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." This principle of bodily integrity soon developed into the principle of informed consent, expressed in 1914 by Justice Cardozo, while on the Court of Appeals of New York, as follows:

Every human being of adult years and sound mind has the right to determine what shall be done with his own body; and a surgeon who performs an operation without

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