Euthanasia, consensual homicide, and refusal of treatment.

Consensual homicide remains a crime in jurisdictions where active voluntary euthanasia has been legalized. At the same time, both jurisdictions, in which euthanasia is legal and those in which it is not, recognize that all patients (whether severely ill or not) have the right to refuse or withdraw medical treatment (including life-saving treatment). In this paper, I focus on the tensions between these three norms (the permission of active euthanasia, the permission to reject life-saving treatment, and the prohibition of consensual homicide), assuming a justification of euthanasia based on the right to (personal) autonomy. I argue that the best way to provide a coherent account of these norms is to claim that patients have two distinct rights: the right to autonomy and the right to bodily integrity. This solution has some relevant implications for the discussion of the legalization of active euthanasia.

The patient suffering from acute respiratory failure COVID-19 related who refuses medical treatment: an emblematic case.

Respiratory failure related to COVID-19 may evolve into acute respiratory distress syndrome, which may require invasive treatment. Through the analysis of a concrete clinical case, we want to clarify how to manage patients suffering from serious acute pathologies, which require timely intervention, even invasive, but refuse medical treatment. The Italian law 219/2017 states strongly the freedom of the patient to choose, independently whether to start or stop at any time any type of medical treatment through their informed consent. The law, of course, addresses in several parts the problem of the refusal of the subject to certain choices. The law also provides that if the patient refuses therapies or interventions, putting his life at risk, the doctors need to engage in further communication with the support of other professionals, informing the patient of the consequences, promoting every support action, and involving family members. Judgment on the level of impaired capacity, which makes a patient incompetent to make therapeutic decisions, should ideally reflect the balance between respecting patient autonomy and protecting the patient from the consequences of a wrong decision. For the physicians, it is a matter of balancing the need to save the life of the person, or at least to avoid the establishment of permanent damage, with the subject itself expressly stated, including an explicit refusal to carry out maneuvers or therapies or interventions when it is in danger of life, even if such treatments could save it.

Refusal of antenatal care and the applicable conceptual models.

•The 'five-prong purpose' model describes the functions of antenatal care.•Addressing challenges identified with the five 'A's model prevents refusal of antenatal care.•Refusal of antenatal care leads to adverse pregnancy outcomes and socio-economic challenges.•A fetus acquires ethical rights after birth and refusal of antenatal care endangers the neonate.•Good clinical governance will improve utilization of antenatal care.

Undue influence in the context of medical treatment.

It is argued that the application of the doctrine of undue influence to patient's decisions in the context of medical treatment is ripe for development. The doctrine is capable of providing much needed protection for vulnerable patients if developed along lines suggested by its use in other contexts. Unfortunately, the Court of Appeal has recently missed an opportunity to develop the law in this way and it may be some time before another suitable opportunity is presented to the courts.

Now you see it, now you don't; consent and the legal protection of autonomy.

In this paper I describe the piecemeal development of the law regarding capacity to consent to treatment. I note how the requirement has changed from Justice Cardozo's low-level requirement of a 'sound mind' to the relatively high-level Re C test. I discuss the limitations of the Re C test. Particularly, that the requirements from believing information and ability to weigh information in the balance--which should be applied to the patient's ability to decide and not the actual treatment decision--are open to subjective abuse and the risk of abductive inferences made from the patient's actual decision. I suggest that, because of a generally poor standard of reasoning ability, only a minimal level of rationality should be required. Furthermore, I demonstrate the fallacy of the judicially approved risk related standard and discuss the Catch-22 situation that arises when it is implemented.

Re T (Adult: Refusal of Medical Treatment)

KIE: The English Court of Appeal, Civil Division, denied an appeal on behalf of a critically ill, unconscious woman who had been given a blood transfusion upon court order after having previously refused to consent to one. The woman's mother, a Jehovah's Witness, had apparently influenced the decision of the daughter, who was not a Jehovah's Witness. The Court of Appeal held that, though every adult has the right and capacity to refuse medical treatment, this presumption of capacity can be overridden upon a determination that factors such as confusion, unconsciousness, fatigue, or shock affect the patient's decision. When a patient refuses treatment, doctors must consider the importance of the treatment, and whether the patient's capacity was reduced. Doctors must also consider whether the patient's decision was made independently. Doctors who are faced with a patient's refusal of treatment in a life-threatening situation such as this should utilize the court system for assistance.^ieng

Re S (Adult: Refusal of Medical Treatment)

KIE: England's High Court of Justice, Family Division, granted a hospital's request to perform an emergency cesarean section operation on a woman against her will. The woman, a "born-again Christian," refused to consent to the operation on religious grounds. The 30-year-old woman had been in labor for two days, and was six days overdue. The court relied heavily on a surgeon's contention that the lives of both the mother and the unborn child would be in danger if the natural labor process were allowed to continue. The court exercised its inherent jurisdiction and issued a declaration that a cesarean section and any necessary consequential treatment could be lawfully performed by the hospital, despite the patient's refusal to consent.^ieng

Being Ms B: B, autonomy and the nature of legal regulation.

In this article, we question the apparent simplicity of medical law's construction of 'life and death' cases as a clash between the sanctity of life principle and patient autonomy. Our main purpose in doing so is to try to understand more fully the nature of law's regulation of the existence and non-existence of life. Specifically, we argue that, by broadening the understanding of autonomy in this area beyond a simple concern for patients' rights and self-determination, to include a focus on the individual generally, it becomes possible to identify some of the legal practices that are central to the manner in which law regulates the threshold between life and death. Through an analysis of a recent case in English law--Re B (an adult: refusal of medical treatment)--(although Australian jurisdictions presently disclose no similar, authoritative case, ours presently is almost an arbitrary choice)--we demonstrate the central role played in this regulation by tests for mental capacity, questions of character, explanation, and imagination. We conclude that medical law, at least in this context, can be theorised as a normalising practice--one in which the determination of norms often occurs through patients.

Ms. B and legal competence: interprofessional collaboration and nurse autonomy.

--Ms. B's wish for withdrawal of treatment was refused. --The nurses' role and autonomy in the decision-making is unclear. --Historically, tensions have existed in the doctor-nurse relationship. --Interprofessional collaboration is encouraged in order to facilitate team working. --Evidence is lacking that this is working and suggests continuing problems. --Legal and ethical education needs emphasizing in order to ensure respect for patient autonomy.

A pretty pass: when is there a right to die?

This paper, the 2002 Fison Memorial Lecture, reflects on the state of the law on the right to die, following the cases of Mrs Pretty and Ms B. Particular attention is drawn to a number of developments in the European Court of Human Rights.

Contemporary transatlantic developments concerning compelled medical treatment of pregnant women.

This paper had identified a contemporary ethicolegal dilemma concerning the circumstances, if any, in which a pregnant woman's refusal of medical treatment may be judicially overridden either in her interests or those of the unborn child. On the one hand, the obstetrician will be concerned about the interests of both his patients in potentially life-threatening situations when they can be protected by what might be regarded as relatively straightforward procedures and where to fail to take those steps might expose the practitioner (at least outside New Zealand where its accident compensation legislation has impact in this regard) to allegations of negligence. On the other hand, the imposition of treatment in these circumstances will necessarily interfere with the woman's rights of autonomy and self-determination. In such cases also, the conduct of medical procedures in the face of an express prohibition by the woman may give rise to liability for battery. (In New Zealand, such a potential liability would not, in the writer's view, be affected by the prohibition on proceedings for damages for medical misadventure as contained in the Accident Rehabilitation and Compensation Insurance Act 1992.) At the heart of an analysis of this issue is the status of the fetus as it is the fact of the woman patient's pregnancy which distinguishes the cases discussed in this paper from others in which the Courts have had to deal with refusals of treatment by those competent to do so. In regard to this aspect, the approach of the Courts in various jurisdictions has arguably been confused and contradictory.(ABSTRACT TRUNCATED AT 250 WORDS)

PIP: This article reviews and analyzes US and UK court decisions concerning the circumstances (if any) in which medical treatment of a pregnant woman is lawful in the absence or refusal of consent. This issue is of practical importance to physicians and raises ethicolegal issues about the relative and competing rights of a pregnant woman and the fetus. A brief overview is provided of the general principles of consent and relevance, and situations in which the "doctrine of necessity" (which allows treatment to be given without consent) may and may not be invoked are outlined. The general status of the fetus as contained in relevant civil law and the right of the fetus to sue as a result of injury inflicted in utero are then reviewed in light of key decisions made in England and Australia. Court decisions on whether a fetus can be "warded" and placed under an order of guardianship are also reviewed. Three US cases in which the courts were asked to override a pregnant woman's refusal to consent to treatment are then detailed. In one case, the pregnant woman was ordered to undergo a sonogram and to submit to a Cesarean section if the placenta was still malpositioned. In a second case, a Cesarean was ordered for a woman near death from cancer. This action was overturned after the fact (and the woman's and baby's deaths) by an appeals court. In the third case, the court refused to order a Cesarean section when doctors predicted the fetus would not otherwise survive. In Britain, the court allowed a blood transfusion to a lapsed Jehovah's Witness who was comatose and had miscarried as the result of a traffic accident. The second case, in which the ruling has been criticized, permitted a Cesarean in a woman whose fetus was malpositioned. These rulings have centered on the status of the fetus and have, therefore, suffered from confusion. They have also suffered from hasty decisions made in perceived emergency situations. In the US, maternal rights are outweighing fetal rights. It has been concluded that courts should not compel pregnant women to submit to medical treatment and any judicial authority in these matters should arise from legislation.

Mental incapacity: some proposals for legislative reform.

While the decision of the House of Lords in Re F in [1990] clarified somewhat the law concerning the treatment of the mentally incapacitated adult, many uncertainties remained. This paper explores proposals discussed in a recent government green paper for reform of the law in an area involving many difficult ethical dilemmas.