Legal Commentary

May Court Order Hysterectomy as Treatment for Cancer, on the Grounds that the Woman?s Refusal Is Based on a Religious Delusion?

By Eugene Volokh

?During a hearing conducted on March 1, 2011, the District Court determined that L.K. is not competent to make her own medical decisions and directed that she undergo a radical hysterectomy on March 3, 2011, against her desires. L.K. objects to the surgery on religious grounds, and expert testimony admitted at the hearing indicated that her religious objections are delusional.? So states an order of the Montana Supreme Court, in Office of State Public Defender on Behalf of L.K. v. Montana Fourth Judicial District Court; the Montana Supreme Court stayed the district court?s order, and ordered an expedited appeal. According to L.K.?s petition,

Dr. Cadell [a psychiatrist] testified that L.K. was currently having religious delusions that God had cured her and that, although L.K. had improved in the past few months, those delusions prevented her from making fully informed decisions about her medical care. Dr. Cadell confirmed that L.K. did understand the recommendations made by her doctors, but that because of her religious delusions, L.K. was not open to take the doctors? recommendations and put them into her thinking....

L.K. then testified on her own behalf that she did understand that she had been diagnosed with cancer and that she did understand the risks of dying if she did not have the hysterectomy procedure. L.K. repeatedly stated that she merely wanted to be able to make the decision for herself and that she may at a later date change her mind and decide to go ahead with the recommended treatment. She testified that she wants to have a child and believes God wants her to as well, that she hoped to be able to do so soon, and that her husband was agreeable to being a father. When questioned by the district court about what treatments she would choose for herself, she first listed two homeopathic treatments and also said that she could change her mind about taking her doctors? recommendations at a later date....

Note that it?s well-settled that sane people have a right to refuse medical treatment, even if they are nearly certain to die as a result. They may do so for secular reasons, religious reasons, or a mix of both. The question in this case, I take it, is whether a mistaken belief about the facts (as opposed to a belief about moral or religious obligations, or about how much one values life, dignity, absence of pain, and so on) ? whether or not founded on religion ? can be so deluded that it suggests that the person isn?t sane enough to make the decision.

For a very similar case in which the trial judge likewise ordered treatment, but which apparently wasn?t appealed, see this post from last year. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Full post as published by The Volokh Conspiracy on March 07, 2011 (boomark / email).