The Right to refuse a medical treatment Lenira Dias FD-UNL

The Medical Relation Equal base vs paternalistic base ; The new generation rights and the bioethical princples related to them: Pinciple of Autonomy; Right to self-determination; Right to Information; Principle of Equality. 2

Patient’s rights As a person:As a part of a contract: Life; Fisical and moral integrity(dignity); Personal identity; Free development of personality; Freedom of speech and belief; Freedom of conscience and religion; Private autonomy; Social security; Education; Work; Confidentiality; Information; Self-determination(to acept, refuse or stop a current treatment); Choose any doctor to treat him/her; equality in access to health care. 3

The Duty to give informations as a condition to a valid consent and the Consent as the condition for a valid intervention on the patient’s sphere Duty of information Valid Consent Patient´s consent Legitim medical treatment 4

The refusal of a treatment and the patient’s autonomy Relevant questions: Does the patient have a legitim right to refuse a medical treatment that could be the only way to save his/her life? Conflict of rights. After the refuse, does the doctor have the duty of respecting the patient’s will or can he perform the treatment even against it? Conflict of duties. 5

Problems raised As to the first question: Right to self-determination on health issues and Right to die with dignity VS Right to life and health protection. 6

As to the second question: Doctor’s duty of protecting and curing the patient VS his duty to respect the patient’s personal sphere or autonomy. 7

Grounds of refusal  Moral;  Cientific;  Personal;  Religious. 8

Conflict of Rights Principle of Harmonization way of balancing the (fundamental) rights in conflict. 9

Conflict of Duties Religious point of view; Moral (social) point of view; Penal point of view. 10

Conflict of duties Examples of practical cases of refusal of a medical treatment:  Refusal of blood transfusion by the Jeová’s witness;  Refusal of a DNA test;  Refusal of a cesarean section or cesarian operation;  Refusal of chemotherapy (and other invasive therapeutics);  Refusal of alimentation;  Refusal of vaccine;  Refusal of a tuberculosis treatment. 11

Religious point of view The Jeová’s Witness situation The right to religion Health protection and to belief (art.41º (art.64º of the of the Portuguese Portuguese Constitution) Constitution) Autonomy (art.26º) Life (art.23º) 12

Moral point of view The Cancer situation Right to die peacefully Right to be cured (art.1º, 13º, 37º) (art.64º=) Dignity (art.1º) Life (art.23º) 13

Penal point of view Conflict between the duty of respecting the patient’s personal sphere and will and the duty of saving his/her life art.36º of the Portuguese PC. A.Refusal of a treatment End of the duty of protection = art.156º of the PC = The doctor shall not realize the treatment. A.Refusal of a treatment Maintenance of such duty = 131º + 10º ( homicide by default). 14

Arrangements for medical refusal Written will Previous; Verbally expressed will Current; Presumed will current but considering previous or actual informations provided by the family pacient is currently unconcious or is temporarily incapable of making decisions. 15

Conclusions Right to life VS Personal beliefs. Previous Consent VS Arbitrary treatments. Duty to treat VS Duty of respect. 16