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University of Toledo College of Law




The right to refuse medical treatment is universally recognized as a fundamental principle of liberty. Nonetheless, the right is often infringed upon by paternalistic physicians who either use too narrow a definition of competence, or misunderstand or ignore the patient's liberty interest in freedom from coerced medical interventions. A careful consideration of competence in the medical care setting leads to a conclusion that it can best be assessed by determining the patient's ability to understand the information necessary to provide informed consent to treatment. If a patient has this capacity, both his consent and refusal must be honored. Placing competence determinations squarely within the framework of the informed consent process should help assure that the values of autonomy and rational decisionmaking that informed consent is founded on are protected. As an additional measure, the authors propose a Model Act which clearly enunciates an individual's right to refuse treatment, does not limit its exercise to the terminally ill or to heroic measures, and provides a mechanism by which individuals can set forth their wishes in advance and designate another person to enforce them.



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