Grounds for withdrawing dialysis treatment under criminal law

Abstract

It is important to understand whether a clinician’s decision to withdraw dialysis treatment is permitted under criminal law. This study examines the permissions required for a clinician to take such action. The withdrawal of dialysis treatment is considered to be an act of forbearance. Clinicians are bound by a legal duty to their patients through their practice contracts. When a clinician withdraws dialysis treatment, this could be viewed as a crime by omission. Thus, it is important that clinicians obtain the permissions required under their legal duty before withdrawing dialysis treatment. The patient’s right of self-determination could be used as grounds for justifying the removal of dialysis treatment. Therefore, to remove the legal duty on the clinician the patient must request that dialysis be stopped. Once the clinician’s legal duty has been removed, the withdrawal of dialysis treatment by a clinician would no longer carry a risk of the clinician being found guilty of a crime by omission. If the patient is of full mental capacity, their permission can be sought. If, however, the patient is not of full mental capacity problems can arise when decisions regarding whether dialysis treatment should be withdrawn fall to another person. In such cases, the putative intention of the patient should be respected to the greatest extent possible and must be determined strictly, although substituted judgment is permitted. In cases in which the patient does not request that dialysis be withdrawn, the ending of dialysis treatment does not constitute a crime by omission in cases in which substituted judgment is allowed. In such cases, the actions of the clinician do not fulfill the criteria for the crime, and hence, the clinician should not be penalized under criminal law. It is not up to clinicians to apply substituted judgment when determining the putative intention of the patient. Instead, substituted judgment falls to the relatives of the patient after consultation with specialists.