Does a Refusal of Treatment need to be Informed? Towards a Resolution of the Current Confusion in English, Canadian and Australian Common Law

Abstract

The right to refuse medical treatment is well established, even if refusal may result in death. However, it remains unsettled whether (and if so to what extent) information must be provided before a person can validly refuse treatment. This article compares conflicting statements from common law cases in England and Wales, Canada and Australia concerning refusals of medical treatment by an adult. Some cases distinguish between withholding treatment, withdrawing treatment without touching the person, and withdrawal of treatment that requires touching. These distinctions are unsustainable and inconsistent with fundamental legal principles of autonomy and bodily integrity. We propose an alternative framework that does not depend on such unsatisfactory distinctions. The common law should not require information to be received before a refusal of treatment is considered valid. Although there is a duty to offer information, the patient is under no duty to accept information offered, or to act on information provided.

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Funding Information: None.

Conflict of Interests: None declared.

Keywords: Medical treatment, information requirements, refusal of treatment, withholding treatment, withdrawal of treatment, battery, negligence, autonomy, advance directive

JEL Classification: i1, i19