each an uninterrupted enjoyment of all the privileges conferred upon him or her by the general laws” (Black’s Law Dictionary, 5th ed.).

While states possess significant power under these principles, the Fifth Amendment of the U.S. Constitution also provides that no person shall be “deprived of life, liberty or property without due process of law.” It is this due process clause that has provided a balance of protection for individuals in situations where the power of the state and the autonomy of individuals come into conflict.

THE RIGHT OF INDIVIDUALS TO DETERMINE THEIR OWN MEDICAL TREATMENT

Generally, competent adults have the right to make their own decisions about whether to accept or reject medical treatment, free from interference by anyone, including the government. These rights are found in the common law and the U.S. Constitution and are maintained through the doctrine of informed consent.

Informed Consent and Refusal

The doctrine of informed consent generally provides that physicians may not perform any medical procedure on a competent adult patient in a nonemergency situation without explaining the risks and benefits of the procedure and obtaining the patient’s voluntary consent. This informed consent doctrine is founded in tort law and state statutes. (For a review of statutes, see Andrews, 1984.) As established in the former, consent must be knowing, voluntary, and competent.1

In Cruzan v. Missouri Director of Health, the U.S. Supreme Court held that the right to refuse treatment is a part of the constitutional right of privacy.2 Justice Rehnquist, writing for the majority, stated: “The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment.”3 In other words, if individuals are competent to consent to treatment, they might choose to refuse it instead. If they are not competent to consent/refuse treatment, the government might be in a better position to coerce. If informed consent applies only to competent adults, what about individuals addicted to drugs and children?

1  

Kaimowitz v. Department of Mental Health for the State of Michigan, No. 73-194AW (Cir. Ct., Wayne County, Mich., July 10, 1973).

2  

Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990).

3  

Id. at 270.



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