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The Truth About "Natural" Healing
-- Ten Things You Should Know
5. Is It Legal?
UNDERSTAND FIRST: What you're about to read here is NOT LEGAL
ADVICE! You need a LAWYER familiar with YOUR STATE, COUNTRY OR
PROVINCE to ADVISE you or APPLY THE LOCAL LAW TO YOUR SPECIFIC
CIRCUMSTANCES. This editor cannot be relied upon even for legal
INFORMATION. But an effort has been made to find sources for
such. Hopefully the brief summary here will give you a start.
Some information may seem vague or ambiguous until you examine it
more closely. It appears that in the U.S. for example, the only
WRITTEN laws about health care decisions are various state
statutes authorizing what have come to be called "living wills" or
more correctly "advance medical directives" or "durable power of
attorney for health care" forms. (See dpa.htm for more details on this.)
However several IMPLIED laws have been recognized by at least the
higher courts in the U.S. Constitution's Fourteenth Amendment, Section
1, second sentence: "No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws."
About a hundred years ago the New York Court of Appeals applied
this "due process clause" to medical treatment in Schloendorff v.
Society of New York Hospital, 105 N.E. 92 (N.Y. 1914). Justice
Cardozo stated: "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." (Similarly
some recent legal commentaries propose that the failure of a
medical practitioner to respect a patient's advance directive is
medical battery.)
Many years later, this same court in re Storar, 438 NYS 2d 266,
273, 420, NE Zd 64, 71 (NY 1981) declared "the patient's right
to determine the course of his own treatment paramount" and added
that a "doctor can not be held to have violated his legal or
professional responsibilities when he honors the right of a
competent adult patient to decline medical treatment."
Shortly before this the American Medical Association Office of the
General Counsel on p.24 of it's 1973 edition "Medicolegal Forms
with Legal Anslysis" called the individual patient "the final
arbiter as to whether he will take his chances with the treatment
or operation recommended by the doctor or risk living without it."
And added: "Such is the natural right of the individual, which
the law recognizes." (Notice: "chances" and "risk" either way.)
More recently in what might be called a "landmark case" for
application of the "due process clause", the "common law right to
bodily integrity" or self determination, and the "doctrine of
informed consent", the United States Supreme Court in Cruzan v.
Missouri Department of Health, 497 U.S. 261 (1990) stated: "The
principle that a competent person has a constitutionally protected
liberty interest in refusing unwanted medical treatment may be
inferred from our prior decisions. In Jacobson v. Massachusetts,
197 U.S. 11, 2430 (1905), for instance, the Court balanced
an individual's liberty interest in declining an unwanted
smallpox vaccine against the State's interest in preventing
disease. ... Just this Term, ...we recognized that prisoners
possess "a significant liberty interest in avoiding the unwanted
administration of antipsychotic drugs under the Due Process Clause
of the Fourteenth Amendment." Washington v. Harper, U.S. , (1990)
(slip op., at 9); see also id., at (slip op., at 17) ("The
forcible injection of medication into a nonconsenting person's
body represents a substantial interference with that person's
liberty"). Still other cases support the recognition of a general
liberty interest in refusing medical treatment. Vitek v. Jones,
445 U.S. 480, 494 (1980); Parham v. J.R., 442 U.S. 584, 600 (1979)
... This notion of bodily integrity has been embodied in the
requirement that informed consent is generally required for
medical treatment. ... The informed consent doctrine has become
firmly entrenched in American tort law. ...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.
...with the advance of medical technology capable of sustaining
life well past the point where natural forces would have brought
certain death in earlier times, cases involving the right to
refuse life-sustaining treatment have burgeoned. See 760 S.W. 2d,
at 412, n.4 (collecting 54 reported decisions from 1976-1988)."
So the courts appear to agree with often quoted British political
/ ethical philosopher John Stuart Mill's famous 1859 essay "On
Liberty". He explains why this is "the ugly" part: "The will of
the people...means the will of the most numerous or the most
ACTIVE PART of the people; the majority, OR THOSE WHO SUCCEED IN
MAKING THEMSELVES ACCEPTED AS THE MAJORITY : the people,
consequently, MAY desire to oppress a part of their number; and
precautions are as much needed against this, as against any other
abuse of power." ..."Protection, therefore, against the tyranny
of the magistrate is not enough; there needs protection also
against the tyranny of the prevailing opinion and feeling;" ...
... "The only purpose for which power can be rightfully exercised
over any member of a civilized community, against his will, is to
prevent harm to others. ...He cannot righfully be compelled
...because, in the opinions of others, ...it will be better for
him, ...make him happier, ...would be wise, or even right. ...Over
himself, over his own body and mind, the individual is sovereign."
..."Each is the proper guardian of his own health, whether bodily
or mental or spiritual. Mankind are greater gainers by suffering
each other to live as seems good to themselves, than by compelling
each to live as seems good to the rest."
Recent legal commentaries likewise note a widespread recognition
of a firmly entrenched right to refuse medical treatment by
competent patients and the guardians or surrogates of incompetent
or unconscious patients; and add that although it is most often
taken to mean the right to refuse a particular medical procedure,
it extends to include the right to cease all medical care.
So, if it's safe, effective, scientific and legal
what's the problem?
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How is it that otherwise rational, caring individuals (who would
adamantly resent being deprived of THEIR choice of what's done to
THEIR body) can view YOUR choice of health care (in U.S. of A.
terminology) as a bill that just passed the House and Senate, and
themselves as the President who has some awesome responsibility to
veto it?
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"Signing of the [U.S.] Constitution"
Painting by Howard Chandler Christy
The Truth About "Natural" Healing
-- Ten Things You Should Know
1. What IS It -- REALLY?
Scientific "Alternative Medicine"?
OR Psychosomatic Occult Superstition?
2. The Issues --
Widespread Claims & Misconceptions
3. Is It Safe?
4. Is It Scientific?
5. Is It Legal?
( THE PAGE YOU ARE NOW READING.)
6. What's the REAL Problem?
7. Is It Enough? --
Growing Up REALLY Drug Free - A True Story
8. Is It For YOU?
9. How Does It Work? --
Unconventional Concepts of Illness & Health
- You May or May Not Have Considered
10. How You Can Learn More
-- Sources & Resources
Text-only Version -
for Printing the Above Pages
(Opens in a new window so you won't lose this navigation bar)
Appendix --
Other Frequently Asked Questions and Observations
Living Wills, Advance Medical Directives,
etc.
U.S. Supreme Court building Washington, DC
USDA photo by Ken Hammond.
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John Stuart Mill?
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