Abstract

This Note explores the right of a patient in a private "hospital" to selectively refuse care—including life-sustaining treatment—and yet remain in the institution. This Note does not address situations in which state law requires the private institution to ignore the wishes of the family or guardian to selectively refuse care. It also does not address whether and when state law should recognize rights or powers in families, guardians, or other third parties to decide what care should or should not be given to an incompetent patient. It analyzes cases involving private institutions assuming that the general law in the jurisdiction recognizes a right or power in the patient, family, guardian or other surrogate to refuse care that the government would desire to force on the patient were it called upon to decide the issue. The recent United States Supreme Court decision in Cruzan v. Director, Missouri Dep't of Health indicates that states will be given latitude to adopt just about any rules they wish in this regard.

Initially, case law relevant to a right to selectively refuse care is examined.Then, because a right to selectively refuse care in a private institution  substantially limits the interest of private persons and entities, this Note scrutinizes other areas limiting private contract and property rights in search of support for the right to selectively refuse care. These areas include: (1) liberal construction of representations made to employees as contractually binding, and implied obligations of good faith and public policy in so-called employment at will cases; (2) limiting landlords' rights in eviction cases by invoking public policy; (3) fiduciary duties or a common law right of fair procedure in hospital staff privileges cases; and (4) concepts of unconscionability and adhesion in contract cases. Finally, this Note also considers the rights and interests of private hospitals and practitioners that might be compromised by a right to selectively refuse care.

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