Withholding medical care as physical injury--refusal to treat from the viewpoint of the lawyer. Special aspects of therapy in children

Abstract

Medical treatment as well as refusal of treatment may be a source for tortious liability. Omitting treatment is generally accepted if the patient refuses consent. Special problems arise however, if the patient is not capable of consenting to therapeutic procedures. Assessing the patient's capability to consent is then the primary obligation. In absence of a respective capability the parents' will has to be accepted as the basis of therapeutic decision, as long as the objective medical needs of the patient remain in consideration. Omitting medically necessary treatment may not be justified with the opposing will of the parents.