Terminal Patients and the Right to Refuse Medical Treatment in Argentina

Health and Human Rights Journal, Vol. 18, No. 2, 2016

4 Pages Posted: 24 Jul 2017

See all articles by Martin Hevia

Martin Hevia

Universidad Torcuato Di Tella

Daniela Schnidrig

Global Partners Digital

Date Written: December 2016


The right to health has many dimensions. On the one hand, it entails positive duties for states to protect the health of individuals. On the other, it encompasses patient decision making regarding personal health, an idea which is closely linked to the right to autonomy and the right to free development of the individual—that is, to dignity. This is why the informed consent of the patient and her right to make a choice according to her own values should be honored, even when her decision may seem irrational or imprudent. When patients are incapable of providing informed consent—for example, if the patient is unconscious—the law can authorize certain persons to act as a proxy on their behalf. In Argentina, the Patients’ Rights Act (2009) as amended by the Death with Dignity Act (2012) states that if a patient is unable to provide informed consent, consent may be provided on her behalf by her close relatives, affinal kin, or legal guardian, in this order of preference. The Patients’ Rights Act also permits patients to set up advance directives regarding health decisions to be made if they become terminally ill. In 2015, the Argentine Supreme Court of Justice discussed the scope of patient autonomy in the case D., M.A. s/declaración de incapacidad. This case presented a question that had yet to be explored by the court: how can we determine an unconscious patient’s will if she does not have written advance directives concerning whether a life-sustaining medical treatment should be continued? This article examines the grounds of the Argentine Supreme Court’s decision in D., M.A. First, we describe the case law that existed prior to D., M.A. Then, after explaining the facts of the case, we discuss the ruling and raise doubts about its scope.

Keywords: Right to Health, Human Rights Law, Terminal Patients, Autonomy

JEL Classification: K30, K32, K10, I18

Suggested Citation

Hevia, Martin and Schnidrig, Daniela, Terminal Patients and the Right to Refuse Medical Treatment in Argentina (December 2016). Health and Human Rights Journal, Vol. 18, No. 2, 2016. Available at SSRN: https://ssrn.com/abstract=3005348

Martin Hevia (Contact Author)

Universidad Torcuato Di Tella ( email )

Avenida Figueroa Alcorta 7350
Buenos Aires, C1428BCW
5411-5169-7185 (Phone)

HOME PAGE: http://www.utdt.edu/ver_contenido.php?id_contenido=4134&id_item_menu=8738

Daniela Schnidrig

Global Partners Digital ( email )

United Kingdom

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