Medical Law Research Paper

ISSUES:

Under what conditions may an adult reject an emergency medical treatment, especially due to religious concerns?

Under what conditions may a minor object to an emergency medical treatment, especially due to religious concerns?

DISCUSSION:

Adults

Where Competent

Generally speaking, a competent adult may reject any medical treatment. This power emerges from their common law right, First Amendment religious right via the Fourteenth Amendment. Important to Illinois’ law, the common law right to refuse medical treatment and the “religious right to refuse treatment, which is based upon the free-exercise clause of the first amendment (U.S. Const., amend. I)” are separate rights. Curtis v. Jaskey, 326 Ill.App.3d 90, 99 (2001) (citing In

re E.G. 133 Ill.2d 98, 106 (1989). This distinction means that any judge making a determination to grant leave to perform an emergency medical treatment, like blood transfusions, must consider the dual bases for the patient’s right to reject treatment. Should a patient raise a religious objection to treatment, it will not exclude their right to object under common law. Id.
Although the right to refuse treatment by a competent adult based on religious objections does exist at law, it can be overcome by a court. The right to refuse medical treatment based on a religious objection emerges from the first amendment and is extended to the states via the fourteenth. In re Brook’s Estate, 32 Ill.2d 361, 366 (1965). When considering any action based on a belief protected by the first amendment, the court must not determine the reasonableness of the religious conviction, only that it not be directly harmful to society. In re Brook’s Estate, 32 Ill.2d 361, 374 (1965) (citing Barnette v. West Virginia State Board of Education, D.C., 47 F. Supp. 251, 253 (aff'd, 319 U.S. 624). In this context, the right of a competent adult patient to refuse medical treatment based on religious objections protected by the constitution is meant to be largely untouched by the courts. However, Illinois does recognize that “[t]he State may intervene in a given case if the State's interests outweigh the interests of the patient in refusing medical treatment.” This is true whether the refusal is based on common law or constitutional principles.” In re Brown, 294 Ill.App.3d 159, 167 (1997). Therefore, the analysis of whether or not to allow treatment without consent based on common law or religious objections follows a similar path. Along that path, the State interests to be weighed are: (1) the preservation of life, (2) the prevention of suicide, (3) the protection of third parties, and (4) the ethical integrity of the medical profession. In re Baby Boy Doe, 260 Ill.App.3d 392, 404 (1994).
The preservation of life is generally meant to be construed as the interest of the State to preserve life where there is doubt about the desire of the patient making the decision.

Of the right to competent self-determination “No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” In re Estate of Longeway, 133 Ill.2d 33, 44 (1989) (quoting Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891)). The preservation of life is meant to aid the State is determining the desires of the patient. Specifically, the court should only consider the desires of the patient alone excluding the consideration of others under this interest. In re Brown, 294 Ill.App.3d 159, 172 (1997) (explaining that appointing a GAL for a fetus before birth that could benefit from blood transfusions being refused by the mother was improper because only the rights of the decision maker are considered).

The State’s interest in the prevention of suicide is strong but limited. It is not to be used where the choice of the patient is merely to withdraw from a treatment regimen. In re Estate of Greenspan, 137 Ill. 2d 1, 17 (1990) (citing Hodgman & Frazer, Withholding Life Support Treatment in Illinois, 73 Ill.B.J. 106, 108 (1984)). Additionally, there is no prevention of suicide interest where a patient agrees

to medical treatments to prolong life and health except blood transfusions due to a religious objection. In re Brown, 294 Ill.App.3d 159, 167 (1997).
The State’s interest in protecting third parties is a valid concern but only dealt with hypothetically in the case law. A case where a mother who refuses blood transfusions that might lead to her death, yet still has children dependent on her, may have her otherwise competent medical decision overridden by a court. In re Brooks’ Estate, 32 Ill.2d 361, 372 (1965) (taking pain to note that “no minor children were involved” in a patient’s decision to refuse blood transfusions that substantially increased her chance of death). Additionally, the state also has an interest in creating a stable role for hospitals in treating their patients and promoting positive medical standards. In re Brown, 294 Ill.App.3d 159, 167.
Where Incompetent:

In cases where an adult is not competent to consent, from inability to make competent choices or the existence of a medical emergency, the emergency exception to consent based on the doctrine of implied consent governs. Sekerez v. Rush University Medical Center, 2011 IL App (1st) 090889, ¶51. If circumstances exist that demand administration of a treatment, treatment may be administered if: (1) there is a medical emergency; (2) treatment is required to protect the patient's health; (3) it is impossible or impractical to obtain consent from either the patient or someone authorized to consent for the patient; and (4) there was no reason to believe that the patient would decline the treatment, given the opportunity to consent. Id. at ¶52. If a person’s situation meets these categories, an exception may be made to seeking consent.
A patient that has made religious objections in the past to future possible treatment, even though it might be lifesaving, will not lose their objection if they become incompetent and their medical circumstances have not changed. This rule emerges from a pair of cases where medical treatment was forced on those with objections to treatment. Bernice Brooks was in a hospital for a peptic ulcer and had registered her Jehovah’s Witness religious objection to blood transfusions with her doctor and the hospital's administration. In re Brook’s Estate, 32 Ill.2d 361, 362-63 (1965). At the time she registered the objection, there was no objection that she was competent to do so. Her doctor made the decision to seek a State’s Attorney and have a conservatorship declared over her and then have the blood transfusion consented to. Id. In so doing, she lost her competency to consent because the conservator held that right for her. The court instructed that the process was highly inappropriate and that the State’s choice to overrule her religious objection was wrong. Id. at 372-73. She did not lose her religious objection to a treatment she contemplated and gave the doctor’s notice of. The doctor should have known that she would refuse treatment, even in changed circumstances, given the pains she went through to make her refusal clear. Additionally, a conservator should never have been appointed for this reason. Id.
Contrast this conclusion with a later appellate case that identified that a refusal made by a competent person will not be overcome by the doctrine of implied consent, except when the circumstances have changed drastically. Curtis v. Jaskey, 326 Ill.App.3d 90, 97 (2001). The Jaskey court identified an automobile crash as an instance where previous statements of a patient intending to refuse treatment will be “one factor to consider in deciding the factual question of whether the patient would have consented under the changed circumstances” Id. The court did not limit this conclusion to only common law objections, rather it discussed this in the light of medical emergencies. Id. at 98. Its conclusion on the matter was that a refusal would only be dispositive where “the patient intended the refusal to apply in the circumstances under which the treatment was rendered” Id. Otherwise, the refusal is a factor to be weighed in the context of the earlier mentioned State’s interests.
In deciding to impose emergency medical treatment on a person, the judge must consider the competency of the person to make an objection, if the objection was made in a common law context or religious context or both, and if the present circumstances are changed enough from those in which the patient gave their original refusal. An unambiguous refusal by a competent person will be controlling unless one of the State’s interests is overriding, subject to the strictures outlined above. If the refusal is ambiguous in the emergency circumstance or the person subsequently becomes incompetent, the emergency exception test will be applied.

Minors

A minor’s right to refuse medical treatment varies slightly from that of an adult. A mature minor has a right to reject treatment at common law but it has not been decided if a mature minor may reject medical treatment based on a religious, constitutional ground. See In re E.G., 133 Ill.2d 98, 111 (1989) (declining to address the constitutional objection issue because there were other adequate grounds to decide the case upon). Under common law, a minor can reject emergency medical treatment if (1) they are married, pregnant, or a parent or (2) a court finds by clear and convincing evidence that they are mature enough to exercise the judgment of an adult and appreciate the consequences of their actions. In re E.G.,133 Ill.2d 98, 110 (1989) (citing 410 ILCS 210/1). If a minor fits into one of these two categories, a court must evaluate their right to refuse medical treatment within the same parameters described above for adults. Otherwise, the minor is immature at law and incompetent to make major medical decisions. This decision becomes a balancing test that a judge must make at the time of petition. See Id.
A court does have the power to compel medical treatment. One avenue it may take is to use a guardian for an infant/immature child. People ex rel. Wallace v. Labrenz, 411 Ill. 618, 627 (1952). In determining whether that is proper to compel treatment, the court must engage in a balancing test. The two major values the judge must balance against the wishes of an immature and incompetent minor are Illinois’ public policy valuation of the sanctity of life and the State’s parens patrie power. In re E.G., 133 Ill.2d 98, 110-11 (1989). Illinois values the sanctity of human life. In re Estate of Longeway, 133 Ill.2d 33, 51 (1989). To that end, even in circumstances where a patient who is medically certain to never regain consciousness, the rejection of treatment made by their guardian (removing a feeding tube that will lead to death), must be supported by clear and convincing evidence that the rejection is what the patient would have wanted. See Id. Illinois would rather err on the side of life. Additionally, a court has the ability to force medical treatments “to protect minors and, if necessary, make vital decisions as to whether to submit a minor to necessary treatment where the condition is life threatening, as wrenching and distasteful as such actions may be.” Id. (quoting In re Hamilton (Tenn.App.1983), 657 S.W.2d 425, 429). That power does fade as the minor approaches maturity and as the gravity of the procedure decreases. Id.
While the age of the minor will be certain in most cases, there is still a somewhat open question as to whether or not a blood transfusion is a procedure important enough to overcome the parens patrie power.

In two cases, decided three years apart, blood transfusions were decided to be invasive and therefore greatly violative of bodily integrity. In re Brown, 294 Ill.App.3d 159, 171 (1997). Logically this would cause the parens patrie power of the State to be less effective. However, Brown has not been cited for the blood transfusion determination since it was handed down. It even conflicts with a case in the same appellate district that found blood transfusions to be a “relatively non-invasive and risk-free procedure” especially as compared to a caesarean section. In re Baby Boy Doe, 260 Ill.App.3d 392, 402 (1994). While the case law is conflicting, giving grounds for a judge to possibly choose between the determinations, Baby Boy Doe did leave the determination of whether or not a non-invasive blood transfusion may be forced upon a religiously objecting person by a court. Id. Depending on how the court wishes to proceed, Brown might have answered that

question.