Should a judge decide what type of medical treatment should we follow?

Part one of this series: the choice of medical treatment right of every patient

Since the option to reject the case most likely involved a transfer to another hospital and the situation was highly recommended, the team physician, or surgeon, decided to go behind her patient FOZ Judge, Magistrate Court Judge of First Instance and Instruction number one of Torrelavega to, I quote from Auto, to request "authorization for blood transfusion in case of need."

As you can imagine the situation was complicated for MMF since, it seems, by the performance of medical equipment in question, the decision or opinion that an adult has about what kind of therapy or treatment decided to choose has no value.

Can you imagine that the judge had given the authorization without the hospital? Well, almost certainly that M.M.F. I had blood transfusion without her consent, and almost certainly would have made that blood transfusion without saying anything.

But back to the case. The judge, with very good sense from my point of view, rather than more accessible without the request of the hospital decides to send his secretary to make a series of questions to MMF the same night he was to speak to the patient and was already prepared in the operating room for surgery. With the information collected Secretary returns to court and re-prepare the patient for operation. Again, everything changes. It is seen that the court received a call asking for the intervention was stopped, and again interrupted the operation. The judge wanted to personally speak with M.M.F.

According to the indictment "in that health center, there was some conversation with the aforementioned DNA .... (MMF), appreciate the conscientious, steady, spontaneous, free and convincingly informed willingness to take risks that the refusal to undergo a transfusion can entail, including death itself. "

Fundamentals of law
It can bore a great deal with the matter summarize some of the highlights that the judge mentioned in the merits of the car.

"Well, in light of constitutional provisions enshrining the life, physical integrity (Article 15) and freedom (Article 1.1, 9.2 and 17) as fundamental rights in a context where the political order and social peace is based on the dignity and free development of personality (art. 10.1) can be said that is unacceptable (the marking is always mine) that a third party, against the will of the sole holder of the rights at stake , decide what risks it must take or what property has to resign, which would reduce the person status to another activity incompatible with dignity. "

"It should be noted that because of the irrepressible tendency to mystification of the medical and science is an exercise in humility necessary to place this activity in human health where it belongs, far from the aura of infallibility which appears to reverse those justifying medical intervention against the will of the patient, based on an alleged "defense" of a higher good, well not be interested in the assessment, is an "attack" some other real-integrity, life - that you supposedly are trying to preserve, based on a statistical calculation that involves as secure the possibility of failure in that particular case. Medical science is unable to ensure the outcome of their treatments or interventions needs no demonstration. Rather, everyday life shows how far the implanted medical diagnosis or therapy does nothing to choose between various possibilities, undergoing natural mistake and risk margins, not necessarily attributable to negligence but implicit in the health care activity, precluding absolute certainty of success, in addition to the treatment of choice may be unnecessary in the evaluation of another professional.

To summarize:
1) The judge considers "unacceptable" that it is he who has to decide when is the patient who has that right.
2) Medical science should be more humble. Do not mystify the doctor and his science.
3) It is the patient who decides what is the value you want to give higher priority.
4) The doctors are wrong and do not always agree on what the best treatment.

Then in the legal arguments the judge focuses on a crucial point: What is more important than life or liberty?

"Indeed, if the constitutional text have to stick (as it can not be otherwise, according to the established in Article 5 of the Organic Law of Judicial Power), is the freedom he deserves in the consideration of Article 1.1 higher value of the legal system ....

Further, I understand that can not sustain a conception of life and to reduce over and over to a pure biological fact, released from the set of values, feelings and ideas, without which life simply because it lacks the human dimension that distinguishes animal to person.

"As Cobo del Rosal and maintain Carbonell Mateu (Criminal Law, Special Part, 3rd edition)," it is not, in truth, that freedom must prevail over life in case of conflict, no conflict is possible, life as only compatible with freedom is the subject of constitutional recognition "(italics and bold Auto).

"That being so, no emergency can justify a third, even if Judge, invasive of another vital project and to impose his will against his personal project, choosing, for him the risks and suffering that he must take. Thus it has been said, not unreasonably, that such activity would involve degrading treatment, to the extent that, from a supposedly paternalistic attitude, which involves an Olympian disregard for human dignity, and is bound to another, against their will , the unwanted risk taking, all based on a probability calculation that takes itself a certain uncontrolled risk that the other should bear. "

"FOURTH .- All this is supported now by the provisions of Law 41/2002 of 14 November, regulating the patient's autonomy and rights and obligations regarding information and clinical documentation, chapter IV, entitled "Respect for Patient Autonomy," establishes the duty to respect that will, even when there is a risk to the patient's life, except in cases expressly determined by that law, none of which exist in the present course. "

To summarize:
1) Under the Spanish constitution, freedom is the higher value.
2) In case of conflict only life compatible with freedom is the subject of constitutional recognition.
3) Again, no judge should choose risk or suffering other.
4) Respect for patient autonomy even when there is risk to life.

We will leave for a third installment: the final decision of the judge, it ended the bad experience of MMF and our own conclusions.

Spanish constitutional articles cited in the Order of the Judge.
Article 15
Everyone has the right to life and physical and moral integrity, without, in any case, can be subjected to torture or to cruel, inhuman or degrading treatment. Abolishing the death penalty, except as may be available to military criminal law in wartime.

Article 1
1. Spain becomes a social and democratic state of law, which holds as superior values of its legal freedom, justice, equality and political pluralism.

Article 9.2
2. Applies to public authorities to promote conditions for freedom and equality of individuals and groups to which they belong are real and effective, to remove obstacles which prevent or hinder their full and facilitate the participation of all citizens in the life political, economic, cultural and social.

Article 17
Everyone has the right to liberty and security. Nobody can be deprived of his liberty, but with the observance of the provisions of this Article and in such cases and in the manner provided in the Act

Article 10
1. The dignity, the inviolable rights which are inherent, the free development of personality, respect for the law and the rights of others are fundamental to political order and social peace.

Related topics:
Part 1: The choice of medical treatment right of every patient

Part 3: Respect for patient autonomy.

*Automatic Translation