RMB Articles

The Right to Refuse Medical Assistance

Posted 10-11-2014
Written by admin 101

The question of whether Australians would be willing to accept euthanasia as a lawful right is often debated in the media and in the wider Australian community.

There have been high publicity cases of persons who have been criminally charged when assisting someone to die.

One area which is of great interest is the right, if any, of an individual to request that no medical treatment be provided to an unconscious patient who would not survive without that treatment.

There has been some recent cases which have explored this issue and particularly looked at the issue of doctors facing this awful dilemma.

A case in 2009 directly dealt with this issue in relation to a patient who suffered from septic shock and respiratory failure and had directed that should they become unconscious that there be no medical intervention.

There has been uncertainty about whether or not the medical profession must adhere to such a direction. After all, doctors would normally be expected to do whatever they could to assist the patient to hopefully recover.

Such a difficult area takes into account the rights of the individual to self determine what medical treatment they wish to receive together with the principle that the medical profession must treat anyone who requires their assistance.

The case in 2009 looked very closely at the issues of the competing interests between the individual and the medical profession.

In summary the court decided that the rights of the individual normally must prevail.

The court also considered whether or not the individual, when making such a determination, had the capacity to make such a decision.

The court went on to take into account that normally a doctor was required to obtain consent for treatment. For the consent to be valid, it must be based on advising the patient as to the risks and benefits of such treatment.

The court when looking at the decision carefully considered the law and those competing interests referred to above.

On my reading of the final decision the court, with some reservation, decided that the patient when making their decision to refuse treatment was legally capable of making that decision and accordingly had capacity.

The court with great sympathy concluded that the hospital in those circumstances could not administer dialysis to the patient.

This is no doubt a matter which will be revisited by the courts and the legal profession.

One interesting aspect of this type of decision is that individuals are looking at making directions in their Wills to the effect that they have the right to refuse treatment and that the medical profession must take into account the wishes of that person in their Will or any other relevant document.