Lemmens Christophe
University of Antwerp, Belgium.
Med Law. 2009 Sep;28(3):479-97.
The principles of the right to informed consent and informed refusal are quite clear for competent adult patients. The right of a competent adult patient to give his informed consent before medical treatment can be started, is a patients' right that is recognised all over the world. The logical corollary of the right to informed consent is the right to informed refusal. A competent adult patient also has the right to refuse medical treatment by simply withholding or withdrawing his consent. A physician who starts medical treatment without the informed consent of his patient will be held liable for battery. Can these same principles be applied to minors? In other words: do minors also have the right to refuse medical treatment? Can a minor refuse even life preserving care? The interests of the involved parties (minor, parents and state) have to be weighed against each other case by case. A thorough examination of the available case law shows that the best interests of the minor are paramount. This "best interests" standard guides judges in their making of a decision. However, this is certainly not always in accordance with reality. In fact, minors can be mature enough to refuse treatment at a much earlier time than the age of legal majority, whatever the consequences of that refusal may be.
对于有行为能力的成年患者而言，知情同意权和知情拒绝权的原则相当明确。有行为能力的成年患者在开始接受治疗前给予知情同意的权利，是一项在全世界都得到认可的患者权利。知情同意权的合理推论是知情拒绝权。有行为能力的成年患者也有权通过简单地不给予或撤回同意来拒绝治疗。未经患者知情同意就开始治疗的医生将因殴打行为而承担责任。这些相同的原则能适用于未成年人吗？换句话说：未成年人也有拒绝治疗的权利吗？未成年人甚至能拒绝维持生命的治疗吗？必须逐案权衡相关各方（未成年人、父母和国家）的利益。对现有判例法的深入研究表明，未成年人的最佳利益是首要的。这一“最佳利益”标准指导着法官做出决策。然而，这肯定并非总是与现实相符。事实上，未成年人可能在比法定成年年龄早得多的时候就已经足够成熟，能够拒绝治疗，无论这种拒绝的后果如何。
