A construction worker from Brooklyn has filed suit against a hospital for subjecting him to a rectal exam against his wishes. According to his lawyer, the man begged, “Please don’t do that,” as he was held down, and he punched one of the doctors before being sedated and examined without consent. (The man allegedly developed post-traumatic stress disorder as a result of the experience.) Can doctors force a test or procedure on a patient?
Not without a really, really good reason. A doctor can’t force anything on a patient who is competent to make medical decisions and refuses care. The idea of consent as a patient’s right goes back at least to 1914, when Benjamin Cardozo (who would later become a Supreme Court justice) ruled in a New York case that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body.” Without a patient’s permission, even a simple physical exam could technically be considered battery. Taken to the extreme, this principle gives individuals the right to refuse life-saving treatment or to seek “Do Not Resuscitate” orders.
Doctors rarely ask permission for routine matters like checking your blood pressure or listening to your lungs, though, on the grounds that they have your tacit consent. They assume you’ve granted permission for a blood test when you cooperate by rolling up your sleeve for the needle. (This principle only applies to tests that can reasonably be expected in the course of an examination. A doctor can’t assume consent for an HIV test when a patient shows up with a cold.)
For serious procedures like surgery, patients must consent in a formal way, usually with a signature. So even if your appendix is about to burst, no one can stop you from saying “No, thanks,” and leaving the hospital. If you agree to have your appendix removed and doctors then discover a separate tumor during the operation, they might still need permission to do a biopsy—probably from a member of your family.
Doctors can act without a patient’s permission in some situations. If it’s an emergency, and neither a patient nor his family members are capable of making a decision on the spot, doctors might go ahead and presume consent. This could be because the patient is unconscious or because he or she lacks the mental capacity to make an informed decision (as determined by a mental-health professional).
When public health might be at risk, the government has some ability to override an individual’s wishes. Health officials can order that a person be tested for a communicable disease like tuberculosis, but cannot force treatment on anyone. However, as in the case of the honeymooner who crossed several international borders with drug-resistant tuberculosis, they can quarantine someone until the person is no longer a threat, which is a way of strongly urging treatment. States also require vaccines for children attending school, but exemptions are made for medical, philosophical, and religious reasons.
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Explainer thanks Ruth Faden of the Johns Hopkins Berman Institute of Bioethics, Alan Meisel and Patricia Sweeney of the University of Pittsburgh, Philip Rosoff of the Trent Center for Bioethics, Humanities & History of Medicine, and Robert Veatch of the Kennedy Institute of Ethics.