Physician Law Review
Refusal of care
2. Refusal of Care.

A. Overview

State courts have increasingly allowed competent adult patients to refuse treatment. With the Supreme Court's decision in Cruzan (110 S. CT. 2841, 111 L.ED. 2d 224 1990), and the increased use of advance directives, the courts are allowing individuals to decline medical intervention. However this is not an unlimited right to refuse life saving care. In certain situations courts will determine that the right to refuse care is not absolute and will consider countervailing interests. Decision making in this arena is complex, and emergency physicians should seek advice from hospital counsel and administration.

B. The Competent Adult May Refuse Treatment.

State courts have upheld a non-terminally ill but competent person's right to refuse life-saving medical treatment, (In the matter of Lawrence, 579 NE 2d 32 (Ind. 1991)). In this case artificial hydration and nutrition were deemed "treatment" that a competent patient can accept or reject. In Werth v. Taylor, 475 NW 2d 426 (Mich. App. 1991), the court held that a competent adult patient has the right to decline any and all forms of medical intervention, including life-saving or life prolonging treatment.

In McKenzie v. Doctors Hospital of Hollywood, Inc., (No. 90-6961-Civ U.S. Dist. CT S.D. Fl., June 24, 1991), the court held that under Florida law a competent adult has a right to refuse a blood transfusion. In the case In Re Marrazzo, No. 90-14709, New York Supreme Court, Suffolk County, Jan. 2, 1991, a patient with amyotrophic lateral sclerosis, who was only able to communicate by jerking her lower jaw, was found by the court to be a competent adult with the right to determine the course of her medical treatment. In McKay v. Bergstedt, 801 P. 2d 617 (New. 1990), the court held that a competent, non-terminal, adult quadriplegic would be permitted to discontinue a life sustaining ventilator.

C. The Adult's Right to Refuse Treatment is Not Unlimited

However courts have also held that adults do not have an unlimited right to refuse life-saving medical treatment. For example, in Norwood Hospital v. Munoz, 564 N.E. 2d 1017 (Mass. 1991), the court stated that the right to refuse medical treatment in life threatening situations is not absolute. Countervailing interests include preservation of life, prevention of suicide, maintenance of the ethical integrity of the medical profession and protection of innocent third parties.

D. Refusal of Treatment Must be Contemporaneous and Informed

Courts have held that any refusal of life-saving medical treatment must be contemporaneous and informed to be enforced. For example, in Werth v. Taylor, 475 N.W. 2d 426 (Mich. App. 1991) the court held that a patient's prior refusals to permit blood transfusions, which were made before necessity for transfusion arose and in contemplation of routine dilation of the cervix and curettage of the uterine lining, were not contemporaneous and informed. Thus, the physicians giving the patient a blood transfusion when she was under anesthesia determined that transfusion was necessary to save the patient's life. This did not constitute "assault and battery" regardless of whether the physician failed to obtain her husband's permission.

E. The Adult Jehovah's Witness

1. Jehovah's Witnesses firmly believe that transfusion of blood will result in a loss of eternal life, based on interpretation of biblical passages.

2. Witnesses do not accept transfusion of whole blood, packed cells, white cells, or plasma, or autotransfusion of pre-deposited blood. However, many will permit use of albumin, immunoglobulins, hemophiliac preparations, crystalloids, hetastarch, or intravenous iron dextran, as well as dialysis, use of heart lung equipment, and intraoperative salvage if extracorporeal circulation is uninterrupted . If the use of fluorinated blood substitute becomes available, this practice would not be objectionable to witnesses. In addition, organ transplant is not specifically prohibited.

3. Transfusion can be authorized over the patient's objections if there's a question of the patient's competency, or if the state demonstrates a compelling, overriding interest, or if the refusal is not contemporaneous and informed. Therefore, transfusions may be authorized in Jehovah's Witnesses who are not competent adults, have dependents, or are pregnant, or in those for whom there is reasonable doubt of the strength of their religious convictions. These patients or their families should be advised in advance of the pending transfusion.

4. Jehovah's Witnesses will sign standard AMA forms that legally relieve physicians and hospitals from liability associated with their care, and most carry a medic alert card. Both documents are binding on the patient and protect the physician.

F. Children and Refusal of Care

Unless a minor is emancipated, a "mature minor", or has one of the special conditions covered by the treatment statutes, he or she is not cognitively or legally capable of giving or refusing consent for medical treatment. The 8 year old refusing a laceration repair is typically not a problem. Both the parents and physician agree on treatment, and the child is overruled.

Problems typically arise when the adolescent refuses care. This often presents a significant dilemma for the emergency physician. For example, a mother presents to the ED with her 16 year old daughter. Mother states that she believes the child has had sexual intercourse, and mom asks the physician to perform a pelvic exam. The 16 year old adamantly refuses examination.

The case clearly presents an ethical and legal dilemma. Arguably, the refusal of care should be respected. The 16 year old is probably old enough to understand her actions. She certainly understands the nature and purpose of the examination. State law supports the minor when presenting for STDs and pregnancy. States are increasingly recognizing the minors right to privacy. The emergency physician should evaluate and document the patient's developmental state and maturity. The child's refusal should be accepted under either the mature minor exception or may be covered under one of the specific treatment statutes with regard to pregnancy or STDs.

In those jurisdictions that recognize the mature minor, the minor has the same right as a competent adult to refuse life sustaining treatment. In the case of In Re E.G., 549 N.E. 2d 322 (IL 1989) a seventeen year old leukemic Jehovah witness was permitted to refuse life-saving transfusion. However, not all jurisdictions recognize the mature minor doctrine. For example, in the case of In Re Long Island Jewish Medical Center, 557 N.Y.S. 2d 239 (1990) the court refused to adopt the mature minor doctrine and recommended that the legislature or appellate courts adopt a doctrine with an appropriate procedural safeguard.

Minor 'refusal of care' cases can be complex and there are many grey areas. For example, a fifteen year old male with leukemia refuses a blood transfusion; or a seventeen year old female with vaginal bleeding and lower abdominal pain decides to leave AMA prior to evaluation for ectopic pregnancy. These are difficult issues, and you should not attempt to go it alone. Request assistance from hospital administration or hospital counsel.

G. Parent refuses medical care for the child

Generally, state and federal courts support parental control over the basic matters affecting their children. However, when parental actions have resulted in inadequate medical care, courts in the United States have stepped in to decide between parent wishes and physician concerns. Under the doctrine of "parens patriae" (the state's paternalistic interest in children) the state will not allow a child's health to be seriously jeopardized because of the parent's limitations or convictions. A parent does not have the authority to forbid saving their child's life. Courts invariably rule in favor of a physician who claims that a parent is denying standard medical care to a child.

Under the doctrine of parens patriae, the state represents the best interests of the child. The state also looks to the child abuse and neglect statutes, which provide for protective custody when the child has not received medically indicated treatment.

Once again, the emergency physician is empowered by understanding the law. If parents withhold consent, and there is a life threat, the emergency physician should take temporary protective custody based on child neglect. It helps to explain to the parents that this is a medical obligation under the law, and you will immediately report to the hospital administrator, hospital attorney and the local child protection agency. The parents will typically stand down and allow you to proceed with your mission. Even in situations where the minor's life may not be threatened but severely impaired, the courts usually will order medical treatment over the parents objections.

If there is no life threat, and no potential for serious impairment, the parents refusal should be respected. The refusal should be "informed" and well documented. In this context, "informed" means that one or both parents have a normal mental status, understand the risks of refusal, have had an opportunity to ask questions and have decided to leave against your advice.

Remember that you are protected from civil and criminal liability under the child abuse and neglect statutes. You may be hesitant to take custody, but it should not be for fear of liability.

H. Parental refusal based on claims of religious freedom.

The first amendment issue of religious freedom does not change the analysis. The typical example is the 14 year old male, victim of a car accident with a lacerated spleen. He is shocky and needs blood. The emergency physician has typed and crossed, and contacted the surgeon to go to the OR. The parents intercede and refuse to consent to the blood administration.

The courts have held that denying medical care to a child is not within the parents' First Amendment right of freedom of religion: "The right to practice religion freely does not include the liberty to expose... a child... to ill health or death. Parents may be free to become martyrs themselves. But it does not follow that they are free ... to make martyrs of their children..." State v. Perricone, N.J.Rep., Vol. 37, p. 463, Atlantic Reporter, 2d Series, Vol 181, p. 751, 1962.

In Re: The Petition of Allen Town Hospital- Lehigh Valley Hospital Center in the matter of J.S.S., (No. 1990-1492, Common Court of Pleas of Lehigh County Pennsylvania, Orphans Court Division, December 13, 1990) a Pennsylvania Court ordered a pregnant mother, who was a member of the Jehovah Witness faith, to undergo a blood transfusion to save the life of her unborn child. The Pennsylvania Court of Common Pleas issued a court order in which it held (1) that the mother had the legal right to refuse consent to administration of blood products, even if it was likely if she would die without such treatment; but (2) did not have the right to refuse consent to transfusions or administration of blood products, if the unborn child were likely to die, to be stillborn, or suffer irreversible physical injury as a result.

In the case of In matter of McCauley, 565 N.E. 2d 411 (Mass. 1991) the court applied the best interest test and determined the child should receive treatment when the child's parents refused to consent to medical treatment on religious grounds.

The emergency physician should take temporary protective custody, provide care in such cases, and report to the appropriate individuals and agencies.

In more difficult cases, such as the management of the terminally ill, there are many ethical and legal uncertainties. In the previous car accident case, clearly blood administration is in the "best interest" of the child. But in other cases, such as a minor with leukemia and a life threatening anemia, the "best interest" analysis is far more difficult. Here the emergency physician must discuss the case with the family physician and may need to temporize until reasoned judgment from a larger group of decision makers can be brought to bear.

1. Review of pediatric refusal of care issues:

a. In emergency situations, defined as conditions requiring prompt treatment, and not limited to potentially fatal or disabling conditions, any child may be treated without parental consent.

b. Failure to provide treatment in these circumstances may constitute negligence.

c. If treatment may entail risk, it is prudent to obtain a second opinion regarding the need for prompt treatment. Second opinions and attempts to contact the parents should be documented in the chart.

d. "Emancipated" or minors living on their own who are self-supporting and not subject to parental control, a definition that includes college students and unmarried minor mothers, may provide their own consent for treatment.

e. Statutes enacted by many states allow minors to give permission for treatment of venereal disease, or drug or alcohol problems without parental consent, and prohibit informing the parent regarding such treatment (including sending a bill) without the consent of the minor.

f. The "mature minor" rule based on multiple court decisions, indicates that young people who are capable of providing appropriate informed consent may give valid consent for treatment which does not involve serious risks. Although minors have a corresponding right to refuse treatment, it appears to be doubtful the courts will uphold the rights of a minor to refuse treatment that may be life saving.

g. It is noted that, in the past 30 years, no cases have been reported in which a parent has successfully sued a physician for the non-negligent care of an adolescent provided without parental consent.

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