California Physicians, Clinical Ethics and the Law (Part 2 of 3)
There are different types of rights: political, religious and personal rights, such as a right to bodily integrity and a right to life. Rights are also attached to groups within society, such as students' rights, patient's right and parental rights. Further there are positive and negative rights. A negative right implies a right to non-interference, such as a right not to be killed. Conversely, a positive right imposes positive duties of support or assistance on others. A positive right to life imposes the duty to provide proper health care and ensure that life is saved. It is only the person with the right who can demand that the duty is performed or who can waive that right.
In the case example in part 1, the issues fall under the origins of the right to decide for health care decisions and the countervailing state interests in preserving life and maintaining the integrity and ethics of the health care provider. A competent adult patient has the right to accept or refuse proffered medical care. This right is based both in common law and in the various constitutional rights. Further the constitutionally based right to privacy has been asserted successfully in many states to protect competent and incompetent patients alike from unwanted or unnecessary care. The competent adult's right to be free from unwanted bodily invasion is firmly grounded in the right to privacy.
In the case of an incompetent adult without an advance directive a famous case illustrates the importance of having an advance directive/power of attorney for health care. In re Guardianship of Schiavo, the court ruled that Schiavo was in a persistent vegetative state and that she herself would have elected to forego further utilization of the feeding tube. Mrs. Schiavo's feeding tube was then permanently removed. Her death followed a couple of weeks later. In re Guardianship of Schiavo, 2005 WL 600377, No. 2D05-968 (Fla.App. 3-16-05). The incompetent patient's personal right to privacy has been invoked most successfully by others to refuse further life-prolonging care when the patient is terminally ill and the case offers no hope of restoring the patient to relative health.
California's "Natural Death Act" has been held to be an expression of state policy "that adult persons have the fundamental right to control the decisions relating to the rendering of their own medical care." A competent adult has a virtually absolute right to make decisions concerning his or her care, even at serious risk to that person's life or health. In fact, health care providers generally have no duty to contact or seek the input of family members or the patient's next-of-kin in such situations. Caution should be exercised that every situation is fact specific and competency is made on that basis, not as a blanket rule.
Discussion of unconscious or comatose adults will be discussed in blog 3 of 3. Contact Kolah Law for assistance with Clinical Ethics issues in your practice/organization.