Against doctor's orders: the force and limits of personal autonomy in the health care setting.

A. Introduction Our aim in this paper is to consider two related questions, which go to the heart of the larger concern of conflict between a patient's choice and a medical professional's judgment about the proper course of treatment and care. First, how should a medical professional respond to a patient's refusal to conform to medically necessary dietary advice? Second, having been confronted with such a refusal, how should that medical professional then respond to the patient's request of an alternative but potentially harmful dietary choice? (1) We will examine these questions--of refusal and then of contra-indicated demands--by reviewing and analyzing pertinent Canadian authorities, giving particular consideration to the applicable standard of care that is required of a medical professional in the circumstances just described. Our focus, then, will be a principally legal one. We do not, for example, purport to consider associated professional questions or ethical (in the sense of formalized professional ethics) concerns that arise. (2) That said, out analysis will in a sense implicate moral considerations inasmuch as we also seek to construct a justificatory framework in order to explain what we see as the legal duties that are (or are not) owed to the patient. In that sense, questions of autonomy, the limits on autonomy imposed by social norms, and the normative validity of those limits will be interwoven within our legal analysis. In concluding, we will situate those questions in a broader context by suggesting that out framework might usefully inform analyses of any refusal of a patient's request for care, such as (inter alia) where the care specifically requested is considered by the medical professional to be futile. For our purposes, we shall assume that the patient is legally competent to make decisions, and that the patient has refused all other recommended alternatives to the potentially harmful dietary choice (such as tube feeding). We shall also assume the patient's total dependence upon the medical professional's indulgence. That is, the patient is confined to his or her hospital bed or other residential care facility, such as a nursing home or other senior care facility, (3) and lacks the physical ability to resist the recommended dietary regimen and to procure his or her dietary choice through other sources. Our analysis also presupposes that the alternative dietary choice is truly unacceptable--that is, that its provision would fall outside an appropriate standard of medical care. B. Refusal of Medical Care The 1980 decisions of the Supreme Court of Canada in Hopp v. Lepp (4) and Reibl v. Hughes (5) largely settled the question of the general necessity and the specific scope of informed consent in Canadian law and health care practice. Both decisions confirmed the normative status of informed consent under Canadian law by reiterating the obligation placed on medical professionals to disclose all material information (6) to patients prior to obtaining their consent to medical treatment or intervention. In so doing, they rejected the previous practice of medical disclosure based upon what a reasonable medical professional would tell his or her patient in favour of a new standard of disclosure, based upon what a reasonable person in the patient's position would want to know before making a decision about medical treatment. (7) These cases also settled a number of other key considerations relevant to informed consent, including the specific kinds of information to be disclosed to the patient, and the applicable threshold for determining causation where there has been a failure to disclose. (8) The law of battery is also implicated here. In Malette v. Shulman, (9) the Ontario Court of Appeal affirmed that no medical procedure may be undertaken without the patient's consent obtained after the patient has been provided with sufficient information to evaluate the risks and benefits of the proposed treatment and other available options. …

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