Question: A 51-year-old diabetic woman had lapsed into septic shock and coma when the doctors sought a court order for urgent lifesaving bilateral below-knee amputation. The patient had earlier, while competent, refused such an intervention, but the situation was not as acute at that time. The only available family member was her minor 16-year-old son and there was insufficient time to appoint a guardian ad litem. The court found that the patient’s earlier statements regarding her preference to die rather than losing her legs were made without benefit of medical advice of impending death. Which of the following is best?
A. A competent person is entitled to withhold consent, and doctors are obliged to respect that decision unless in their opinion the refusal of treatment is likely to cause death.
B. Under the circumstances of this case, the court may grant or withhold consent using the "best interests" test.
C. The better approach is to secure consent from the 16-year-old son.
D. A court order is unnecessary in this case because it is a true emergency, which allows doctors to perform lifesaving surgery without consent.
E. All are correct.
Answer: B. The above hypothetical is adapted from an actual case in which the court used the best interests test in granting permission to proceed with the operation.
A patient’s decision to accept or forgo medical treatment is accorded legal recognition on the basis of patient autonomy, so long as capacity to consent is not at issue. As Judge Cardozo famously stated in the 1914 case, Schloendorff v. Society of New York Hospital, "Every person 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 case featured a woman whose fibroid tumor was removed while she was under anesthesia although she had specifically refused the operation.
A person is not to be considered incapacitated in decision making merely because he makes an unwise choice, and a well-documented refusal cannot be vitiated by a spouse or next of kin, nor brushed aside in the name of an emergency. Where the wishes of the patient are unknown, courts have resorted to the objective "best interests" test. If it can be ascertained what the patient might have wanted based on knowledge of his/her overall life choices, then such a "substituted judgment" (a subjective test) is used to guide the judicial decision.
Patient refusal to undergo a surgically invasive procedure, such as amputation or pacemaker placement, even if considered ill advised by the treatment team, is regularly given due judicial deference. Courts have upheld the refusal of a patient, in one case a schizophrenic, to undergo an amputation for a gangrenous leg. Likewise, it sided with a mother’s refusal to undergo a cesarean section despite imperiling her viable unborn. However, where there are compelling countervailing factors such as the health interests of a third party, courts have compelled blood transfusions, forced C-sections, and even famously intervened to separate conjoined twins. In the latter instance, an English court permitted the heroic separation of conjoined twins Mary and Jodie despite the inevitability that Mary, the weaker twin, would die during the operation. The court order was issued over the objections of the parents who were devout Catholics.
Then there is the occasional hospitalized patient who wishes to sign out against medical advice, despite being repeatedly warned it is an untimely discharge. However, this unwise decision is usually within the patient’s legal rights, and the attending may be left with the tasks of ensuring that the patient understands the serious consequences, providing temporary medications to the extent possible, and emphasizing immediate medical follow-up in the clinic or with the primary physician. Appealing to family members can sometimes convince the patient to stay, so this is a worthwhile effort.
Another example of patients deciding to forgo beneficial treatment concerns blood transfusion in Jehovah’s Witnesses based on religious grounds. Doctors generally acquiesce to a patient’s choice, but some complain that by refusing blood, Jehovah’s Witnesses render their work riskier and more difficult ("having to operate with one hand tied behind their backs"). As a result, there is a temptation to resort to subterfuge, such as transfusing without informing the patient, or waiting until the patient becomes comatose and is no longer able to refuse. However, such deceptive practices are unethical and inappropriate because they override patient autonomy and disrespect a patient’s sincerely held religious belief.