A Right To Refuse Medical Care: Practicable or Theoretical?

Health care rayofthought

As interesting as it may seem, it is a well-settled principle of law recognized in global jurisdictions that a fully competent person has a right to refuse medical treatment for reasons known and suitable to him/her. A classic expression of this principle is deeply rooted in the dictum of Cardozo J in Schloendorff v Society of New York Hospital (105 N.E. 92 (N.Y. 1914)) where he stated that every human being of adult years and a sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without consent commits an assault for which he’ll remain liable in damages, save in cases of emergency where the person is unconscious and it’s expedient to operate before consent can be obtained.

In Bolivia v Superior Court (Glenchur) (14(1986) 225 Cal Rptr 297) (App 2d Dist), the plaintiff, a 28-year-old quadriplegic woman suffered from severe cerebral palsy and degenerative arthritis. Except for the ability to move a few fingers of one hand and some slight head and facial movement, she was immobile and in continual excruciating pain. The feeding tube had been inserted against her will, and she wanted it removed. The court approved her decision, holding that a competent patient has the right to refuse any medical treatment including nourishment and hydration.

A person might refuse medical treatment on religious grounds. For e.g, strict followers of a particular religion may refuse blood transfusion or any blood products. In Stanford Hospital v Vega (236 Conn 646 (1996)), the plaintiff hospital sought an injunction to authorize the administration of blood transfusion to a patient, a Jehovah’s Witness who had withheld consent. The defendant bled heavily following the birth of a healthy baby. The attending physician and other hospital physicians were of the opinion that blood transfusion was essential for her to survive and take care of the baby. The trial court relied on the state’s interest in preserving life and protecting innocent parties such as the baby and granted the injunction. On appeal, Connecticut Supreme Court held that the issuance of the injunction authorizing the hospital to administer blood transfusion violated her common law right of bodily self-determination and that the interests of the hospital were not sufficient to take over the defendant’s common law right to bodily integrity so long as she was sufficiently informed of the consequences of her decision.

In Nigeria, the case of Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo took judicial notice of this right. In that case, the Supreme Court per Ayoola JSC held amongst other things that if a competent adult patient exercising his right to reject life-saving treatment on religious grounds, thereby chooses a patch that may ultimately lead to his death, in the absence of judicial intervention overriding the patient’s decision, what meaningful option is the practitioner left with, other than to give the patient the comfort. However, notice must be taken of the clause; ‘in the absence of judicial intervention’. In other words, it can be said that the above right is subject to the intervention of the court most especially in cases of a minor.

In Esabunor v Faweya (2008) 12 NWLR (pt.1102) 794, Tega Esabunor was born on the 19th of April 1997 and on the 11th of May of the same year, he fell sick and was taken to the hospital where he was born. After a thorough medical examination, baby Tega was diagnosed with a severe infection which led to a shortage of blood. He was therefore placed on antibiotics which did not work. After being placed on oxygen therapy, the medical personnel believed that without blood transfusion, baby Tega would die. His mother was informed of the position but she refused to consent to the blood transfusion on the ground that she was a Jehovah’s Witness and blood transfusion was forbidden by her religion. Out of options, the hospital management informed the police who applied for and obtained an order from magistrate’s court authorizing the hospital to do all that was necessary for the baby to live. The blood transfusion was done and the baby’s heart improved so tremendously that he was discharged a few days later. The baby’s mother brought an application before the High Court to quash the order of the magistrate court and award damages of 15million naira for denial of parental rights. The application was dismissed and she appealed to the Court of Appeal. In dismissing the appeal, it was held that although a person has a right on choosing a course for his or her life, that right is not available to determine whether her son should live or die on account of her religious beliefs.

Judicial intervention has been justified on various grounds such being;

1) Preservation of Life – Section 14(2)(b) of the 1999 Constitution of the Federal Republic of Nigeria provides that the security and welfare of the people shall be the primary purpose of the government.
2) Protection of Innocent Third Parties – In Application of President & Directors of Georgetown College, a twenty-five-year-old patient, and mother of a seven-month-old child was taken to the hospital for emergency care, after losing two-thirds of her body blood from a ruptured ulcer. She and her husband (members of Jehovah’s Witness) refused to consent to the needed blood transfusion. The hospital applied to the district court for permission to administer blood but this was denied. The hospital then appealed to the circuit court judge who gave permission for the transfusion and added that “the state, as parens patriae, will not allow a parent to abandon a child and so it should not allow this ultimate of voluntary abandonments” . The Court of Appeal in Esabunor v Faweya (Supra) echoed the same sentiment.
3) Maintenance of the Ethical Integrity of the Medical Profession – The state may safeguard the doctors from civil or criminal liability by giving them free hands in the treatment and care of patients. However, where the patient’s refusal has any meaning at all, it is to be accorded respect even when it conflicts with the advice of the doctor or values of the medical profession as a whole.
In conclusion, it goes without saying that the right to refuse medical care is indeed practicable in Nigeria but however subject to the intervention of the courts when necessary.

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