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Rights of patients and next of kin over medical treatment

On Wednesday, The Royal Gazette published an article concerning the prescription of the drug ivermectin, which featured an interview with Kyjuan Brown.

Allan Doughty is a member of the litigation team at MJM Ltd and has served as outside counsel for the Bermuda Hospitals Board, as a medical attorney, for 17 years

In that article, Dr Brown advocated the use of ivermectin, whose effectiveness in treating Covid 19 is the subject of clinical trials. In interviewing Dr. Brown, he was quoted as saying:

“The law is clear. Patients have a right to choose [their course of treatment] and if a patient is unable to give informed consent then the next of kin has a right to choose”.

With the greatest of respect to Dr Brown, and in my capacity as a medical lawyer, I disagree with him on these two points.

On the issue of whether a patient has the right to “choose” their course of treatment, Bermuda has no legislation at present that deals with that subject. The common law, however, holds that a patient who is able to understand the nature of the treatment that is being proposed by a healthcare provider may refuse the care that is being offered even if that refusal may result in the death of the patient.

One example of such a right of refusal is a “Do Not Resuscitate order”, which is a binding refusal to administer CPR or other life-saving treatment to an unconscious patient. Another example is a patient’s refusal to accept a blood transfusion on the basis of their faith.

Having the right to refuse treatment, however, is not the same as having the right to demand a non-recommended treatment that lacks proven medical value. For that reason, a surgeon, who is consulted by a patient, is not obliged to amputate a patient’s healthy limb despite the patient having all of their mental faculties and demanding that the surgeon carry out that procedure.

The second of Dr Brown’s statements that I disagree with lies in his claim that “if a patient is unable to give informed consent then the next of kin has a right to choose”. As a matter of common law, that statement is incorrect. The case law in both England and Bermuda has never recognised the right of a family member to dictate the terms of the treatment of a patient who is no longer able to make their own decisions. While there are notable exceptions to this gap in the common law, I categorically state that as a matter of case law alone, “next of kin” have no legal right to dictate the terms of how a relative can be treated in hospital.

As I said previously, there are loopholes to the premise that “next of kin” have no say in the treatment of a patient. The first such exception arises from the Mental Health Act 1968, which confers limited powers to a patient’s “nearest relative” when it comes to that patient’s admission to the Mid-Atlantic Wellness Institute as well as the release of that patient. These limited statutory powers, however, do not apply to the “next of kin” of patients who have been admitted to the King Edward VII Memorial Hospital or the Lamb Foggo Urgent Care Centre.

The second, more general exception arises where a patient has executed an “advance directive”, “healthcare power of attorney” or “living will” while that patient was still of sound mind. “Advance directive”, “healthcare power of attorney” and “living will” are different names for a document that has the same effect and are generally legal instruments that may confer power on another person to make decisions on behalf of a patient where that patient is unable to make or communicate such decisions themselves.

Such decisions made by another must be taken in the best interests of the patient. The “advance directive”, however, normally takes effect only once a doctor officially declares that the patient is no longer capable of making or communicating decisions for themselves. Once such a declaration has been made and the person in receipt of those powers produces a validly executed “advance directive”, that person may then validly direct the care of that patient.

A third exception may arise where a court order has been made, although the extent of such powers that may be conferred to an appointed receiver will depend entirely on the facts and what the order actually says. This is a situation that will rarely occur and would be based on the court’s inherent power to oversee the treatment of vulnerable persons.

If you do have concerns as to how your wishes will be respected or what say your loved ones may have concerning your treatment, it is my firm recommendation that you contact a lawyer who specialises in the drafting of wills and estate planning, as such attorneys are the most qualified to assist and ensure that you will have your say in how your medical treatment will be handled in future.

Allan Doughty is a member of the litigation team at MJM Ltd and has served as outside counsel for the Bermuda Hospitals Board, as a medical attorney, for 17 years

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Published May 21, 2021 at 7:59 am (Updated May 21, 2021 at 7:43 am)

Rights of patients and next of kin over medical treatment

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