CYIL vol. 13 (2022)

HELENA VAN BEERSEL KREJČÍKOVÁ

CYIL 13 ȍ2022Ȏ

2. The Refusal of treatment based on cultural or religious perspective From the perspective of the patient-doctor relationship, a patient’s refusal to give an informed consent to what a doctor recommends to the patient as the best possible treatment has the potential to create an adversarial atmosphere, 15 especially if the doctor takes the decision of the patient personally. To some extent, it might help to accept the will of the patient if the doctor understands that the patient’s decision is based on their different cultural background or religious belief. On the other hand, as I will demonstrate later on a case of a Jehovah’s Witness suffering from endometriosis, there could be a quite widespread averse of the healthcare workers towards members of a specific religion. The Czech medical law, similar to other foreign legislation, provides the patients with a general set of legal instruments in order to allow them to express their legally binding informed consent, refusal, 16 or previously expressed wish (advance directives, living will). However, as a general rule, the law does not distinguish between the reasons behind a patient decision, as it does not favour or disadvantage a decision based on someone’s religious beliefs over a decision made out of other personal reasons as long as the patient concerned is competent. 17 In some western legislation, there are restrictions laid down in regard to the possibility to refuse a specific treatment, yet once again not explicitly targeting any specific cultural background or religion. The bright example of this would be the Danish law on decision making regarding blood treatment according to S. 24 Para 2 of the Danish Health Act (Sundhedsloven) 18 stating that refusal to receive blood must be made on an informed basis considering the current medical situation, whereas previously expressed wish is not sufficient. 19 In the Czech Republic, the autonomy of a (competent) patient is limited in the sense that one’s wish to have continuous treatment withdrawn on which the life of the patient is dependent, such as a ventilator, is problematic, as the law does not distinguish it clearly from – illegal – euthanasia. In the Czech Republic, euthanasia remains a criminal offence despite numerous attempts to enact a legislation similar to the ones in the Benelux countries. My understanding is that this is the result of (among others) a somewhat surprising influence of the Catholic political power 20 which has been present in the Czech Parliament most of the time during the last decades. By contrast, Israel, the Jewish state with majority Jewish population, shows some progressivity in the same area. According to Judaism, every life is sacred and must be protected and maintained. However, the 2005 Dying Patient Act sneakily distinguishes between so called discrete modalities, consisting of series of individual sessions, such as dialysis or blood transfusion, in which case an upcoming session could be withheld, and so-called continuous modalities, such as life-support through mechanical ventilator, of which withdrawal would 15 See e.g., the case reports from 1983 In: APPELBAUM, P. S., ROTH, L. H. Patients who refuse treatment in medical hospitals. JAMA , 9 Sep; 250(10):1296-301. 16 With exceptions stipulated by law, such as e.g., a mandatory treatment provided under the Act on Healthcare Services, S. 38 or under the Act on the Protection of Public Health. 17 Cf. the decision of the Constitutional Court of the Czech Republic No. I. ÚS 1253/14. 18 The Act is available online (in Danish only) from: https://www.retsinformation.dk/eli/lta/2019/903. 19 Case No. BS-49811/2020-HJR, 1.2.2022. 20 Christian and Democratic Union – Czechoslovak People’s Party (KDU-ČSL): Cf. the Explanatory Report to S. 36 Para 5 of the Act on Healthcare Services..

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