January 01, 2006

Brave New World: Ethical Issues Involving Surrogate Health Care Decisions (2006, 20:01)

Brave New World: Ethical Issues Involving Surrogate Health Care Decisions

Probate and Property, January/February 2006, Volume 20, Number 1

By Shari A. Levitan and Helen Adrian
Shari A. Levitan is a partner in the Boston, Massachusetts, office of Holland & Knight LLP and is vice-chair of the Probate and Trust Division Bioethics Committee. Helen Adrian is an associate in the Atlanta, Georgia, office of Holland & Knight LLP.

It is well understood by the public that a person has the right to consent to medical treatment. The doctrine of consent stems from the concept of battery. “At common law, even the touching of one person by another without consent and without legal justification was a battery.” Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 269 (1990). “This notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment.” Id. “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.” Id. (emphasis added). “The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment.” Id. at 270. In practice, a competent person will be asked to consent to medical treatment.

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