Public Health Law Map - Beta 5 - Medical and Public Health Law Site

toward her fetus are inappropriate.
5. Pregnant substance abusers should be provided with rehabilitative treatment
appropriate to their specific physiological and psychological needs.
6. To minimize the risk of legal action by a pregnant patient or an injured child or
fetus, the physician should document medical recommendations made including the
consequences of failure to comply with the physician’s recommendations.
2. Implications of the AMA Policy
The use of judicial process to force medical care on an unwilling patient has a long
and checkered history. It is a power that has been abused in the past and will
continue to be abused in the future. It is also a necessary power in the management of
persons who are not able to make rational decisions about medical treatment. Most of
these are chronically mentally ill, although some are suffering from acute toxic or
psychiatric conditions that render them temporarily incompetent. The forced care of
pregnant women is controversial because it is being applied to women who are
mentally competent. These women may have made self- destructive decisions, but
they are rational decisions. The forced care is rationalized on the need to protect the
fetus, not the health of a woman who is unable to make rational medical care
decisions.
The AMA policy emphasizes that the duty of private physicians is to inform and
educate their patients, not to make their decisions for them. (The duty of certain
public health and mental health physicians is to protect the public, even at the
derogation of an individual’s right to determine his or her own medical care.) It is
important to note that this presumes an informed refusal of medical care. Patients
who are not able to make rational decisions are not able to make an informed refusal
of medical care. In these cases, it is proper for the court to intervene and ensure that
the person receives proper medical care. Physicians have the same duty to seek
appropriate judicial intervention for a mentally incompetent pregnant woman as for a
mentally incompetent diabetic man. They do not have the right to intervene to protect
the health of the fetus if the woman is otherwise competent to make her own health
decisions.
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3. Consent in High-Risk Pregnancies
The physician’s duty to inform and educate is the same whether the factor
complicating the pregnancy is intrinsic or behavioral. This duty is complicated by the
legal dilemma that the woman is the proper arbitrator of her medical care, but she is
not the only person who can sue the physician for the consequences of that care. The
patient’s husband or surviving children can sue the physician if the patient dies or is
gravely injured. If the woman knowingly assumes the risk of the pregnancy and her
medical decisions, then she can waive her right to sue. This waiver will bar others
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