Право / 1.История государства и права

Doctor of Law Marianna Shchirba

Eastern National University named after Lesya Ukrainka, Ukraine

The right to refuse of medical intervention

The right to information consent for medical intervention is one of the fundamental rights of the patient. This right has expanded interpretation, since it includes not only the patient's ability to information consent but also the refusal of medical intervention. Ronald B. Standler points out that the right to refuse has two sources: (1) freedom from coercion, recognition of autonomy, and the right to self-determination, and (2) is the result of "information consent" arising from the doctor's fiduciary duties to patient [1, p.29].

In our opinion, the right to refuse may be exercised as follows: the initial refusal of medical intervention or the withdrawal of a previously granted consent by the patient who provided it. At the same time, the first is the presumption of capacity, which implies that a person is capable of accepting any decision (consent or refusal) independently, unless otherwise proved. For the effective realization of the right to consent and the right to refuse, subordinated actions by the medical staff are necessary. That is, the right needs the patient to be properly informed when making a decision. Completeness, clarity of this information is a component of both positive and negative decision of the patient. The right to refuse applies to all cases when it comes to a capable patient. Even if the refusal of medical intervention leads to a deterioration of the patient's health, the lethal consequences, is foolish from the point of view of the majority of members of society, state authorities and medical staff. We emphasize that in this case the presumption of self-determination of the patient dominates the criterion of reasonableness. In the US, the well-known is precedent of Lane v Candura. Its essence is that 77-year-old Mrs. R. Candura refused to agree to the operation on the amputation of her legs. Her daughter filed a lawsuit in order to appoint her a temporary guardian who has the right to give consent to an operation on behalf of her mother. The court has determined that an adult patient may refuse the amputation of a leg that has gangrene, and which will preserve her life. The precedent states that "the law protects the right to make an independent decision, to accept or reject treatment, regardless of whether the decision is wise or incomprehensible" [2].

Most often, the refusal of treatment occurs due to the religious affiliation of the individual. Each state faces the need for a normative indication of the priority of religious freedom or the preservation of individual’s life and health. Here we are talking about the current practice of refusing to transfusion in connection with the religious views of the patient. In a widely quoted by all scientists, the decision of the European Court of Human Rights "The religious community of Jehovah's Witnesses in Moscow against the Russian Federation" states that courts in many countries of the world, considering cases regarding the refusal of Jehovah's Witnesses of blood transfusions and medical intervention, concluded that although the interests of the state in protecting the patient's life and health are legitimate and relevant, the priority should be given to even more important patient interests. The patient, like no other person, has the right to determine his/her life path, and hence to refuse of medical care in all circumstances. Therefore, in the absence of danger to the lives of third persons in other countries, the refusal of the person of any treatment, as well as of vaccination during the epidemic is accepted. That is, the state in any case refrains from interference with the freedom of citizens’ choice [3].

The second criterion - is the observance of clarity. The patient should express his/her refusal in a clear, accessible, comprehensible form. It should be noted that the refusal of the patient to apply to him/her a method of treatment does not always mean refusal of treatment at all, therefore the doctor is obliged to offer to the patient other, acceptable for him/her, methods. Therefore, it is the best to prevent future conflicts that the form of denial in case of severe cases was in writing.

Another criterion is compliance with the principle of independence. Consent or refusal is accepted by a capable patient individually. It is important that the right to refuse includes the possibility of withdrawing consent for medical intervention. The recall is done by the patient who previously agreed to the intervention. Apposite, in our opinion, is the design of the withdrawal of consent provided in the legislation of Belarus. The patient has the right to withdraw consent in all cases except the following: medical intervention has already begun and its termination or return to the primary state is not possible due to a threat to the life or health of the patient [4].

Discussion in this regard is the right of a pregnant woman to refuse of treatment, if it can harm the fetus. The legal regulation of the medical sector of most states does not answer this question. But, point 6.1 of The Icelandic Law on the Rights of Patients defines the absolute right of women to decide on the issue. A capable pregnant woman has the right to decide on treatment on her own. The principle of state policy here is to support and not to interfere with the right, since under such circumstances, special organs are informed to provide support for the family at all stages and after birth [5].

There is no single approach to the form of medical refusal. In some countries there is no normative indication of the right to refusal. These include, for example, Finland [6]. In most other states, along with the right to consent, the right to refuse and the right to withdraw consent are considered. Typically, the form of refusal is the same as the form of consent, defined by national law. A refusal must necessarily be made a mark in the medical documents of the patient or submitted in the prescribed form, which is signed by the patient and the attending physician.

Refusal of treatment, as well as information consent is a process, not a certain formal document. Such a process, in our opinion, includes three mandatory steps: 1) informing the patient about the health status, the need for medical intervention, the peculiarities of its passage, risks and alternatives, etc.; 2) independent informed patient refusal from medical intervention; 3) clarification of the consequences of refusal for the patient, his life, health and the course of the illness, and in case of insistence of the patient, acceptance of the refusal by the doctor.

The Civil Code of Ukraine regulates the issue of refusal of treatment. However, there are conflicting moments. Art. 284 in part 3 states that the provision of medical care to an individual who has reached the age of fourteen is carried out with her consent, thus not giving consent, from the contents of this norm, also occurs as a right of a patient from 14 years. However part 4 of the same article defines that the refusal of treatment can only be made by a person of the age of majority. Also, the refusal form is not agreed in national legislation. Health care establishments develop a form of written denial on their own, since the form of consent is established by subordinate acts, and the form of refusal is not.

An analysis of the practice of refusal right allows us to introduce the following suggestions for improving national legislation: to determine that patients who have reached the age of 14 have the right to refuse of medical intervention only if they agree such a refusal with their parents or legal representatives; to establish that a person may withdraw consent for medical intervention, except when the medical intervention has already begun and its termination or return to the primary state is not possible or is related to a threat to the life or health of the patient; to standardize the form of written refusal of medical intervention and to establish special cases when the written form is mandatory.

References:

1. Ronald B. Standler Legal Rights of Medical Patients іn Massachusetts / Ronald B. Standler // http://www.rbs2.com/prm.pdf

2. Lane v. Candura, 376 NE2d 1232, 1236 (Mass.App. 1978) // http://masscases.com/cases/app/6/6massappct377.html

3. Jehovah's Witnesses of Moscow v. Russia (Application no. 302/02) 22/11/2010 // https://hudoc.echr.coe.int/

4. О здравоохранении: Закон Республики Беларусь от 18 июня 1993 г. № 2435-XII // http://pravo.by/document/?guid=3871&p0=v19302435

5. Patients’ Rights Act: Acts of Parliament of Welfare No. 74/1997// [Electronic resource]. – Mode of access : https://eng.velferdarraduneyti.is/media/acrobat-enskar_sidur/Patients-Rights-Act-No-74-1997.pdf.

6. Act on the Status and Rights of Patients: Finland N.B on 17th August 1992 No. 785/1992 // [Electronic resource]. – Mode of access : http://www.finlex.fi/en/laki/kaannokset/1992/en19920785.pdf