The Legal Nature of Patient Duties

Medical treatment is oriented at the result, i.e. patient health, and this result can be different – complete recovery of the patient, partial recovery or no health improvement. The most successful treatment with the most beneficial result is possible if the legal statuses of the medical professional and the patient, i.e. the rights and duties, are balanced. This creates a precondition for productive cooperation of the parties for a common goal. However, until now, an appropriate equilibrium of the legal statuses of the parties has not been achieved in the medical treatment relationship models.

In fact, there are two basic models of the medical treatment relationship – paternalism and patient autonomy. Both models are characterised by asymmetry of the legal statuses of the parties, with the predominance of one party while the other party mainly has duties. First, paternalism (‘paternalis’ [Latin] – ‘fatherly’) originates from medical ethics where the doctor has the duty to protect the patient as the weaker party from their own decisions and to act in the best interests of the patient, and the doctor decides what these interests are, thus limiting the patient's initiative and responsibility (Mead, 1997: 4; Turner-Warwick, 1994: 16; Buijsen, 2000: 6; McHale, Fox, Murphy, 1997: 82; Draper, Sorell, 2002; Buetow, 2005: 304; Fengqing, 2016: 528; Jackson, 2013: 2; Baldunčiks, Pokrotniece, 1999: 569). It follows that paternalism is a doctor-centred relationship (Kaba, Sooriakumaran, 2007: 58, 59) where the doctor decides on the treatment process and the patient complies with the doctor's decisions without objection and without taking the responsibility in the treatment process. The most significant criticism of paternalism is that in medical treatment it is not enough to provide for duties for the parties but harmonious interaction of the parties is required (Olsen, 2000: 64).

Second, in the patient autonomy model (‘autos’ [Greek] – ‘self’, ‘homos’ [Greek] – ‘law’), the power in medical treatment is transferred from the doctor to the patient, whereas medical professionals mainly have only duties; thus, this model is a patient-centred relationship (Goold, Lipkin, 1999: 31; Kaba, Sooriakumaran, 2007: 58, 59; van Oosten, 1991: 12; Brody, 1995; Smith Iltis, Rasmussen, 2005: 135; Recommendation Nr. R(2000)5, 2000: Preamble; Charter of Patient Rights and Responsibilities: Preamble; Declaration of Geneva, 1948; International Code of Medical Ethics, 1949; Baldunčiks, Pokrotniece, 1999: 85). The drawback of this model is that the patient has rights but no corresponding level of responsibility (Wilson, 1998; Engst, 2008: 386), whereas autonomy also presumes the ability to take responsibility and fulfil duties. It can thus be concluded that the paternalism and patient autonomy models are centred on one of the parties of the medical treatment relationship, providing for a drastic scope of rights for one party and a disproportionate scope of duties for the other party, with no equilibrium between the legal statuses of the parties, whereas such centring is not appropriate for the medical treatment relationship.

The modern legal relationship in medical treatment is patient-centred, which does not ensure an equilibrium between the legal statuses of the parties. Despite the fact that the legal relationship in medical treatment is recognised as a multilateral transaction and a bilateral contract where the parties have equal rights (Civillikums, 1937: 1427.p., 1512.p.; Greene, 2005; Girke, 2007: 1128; Watson, Kottenhagen, 2018: 4), in medical treatment, the patient's will takes priority – whether at the establishment of the legal relationship, during its existence or at its termination (Pacientu tiesību likums, 2009: 3.p. sestā d., 6.p. pirmā, ceturtā d., 8.p.). The patient also has the right to take a decision that contradicts objective information or take a subjective decision, which is not always to the benefit of the patient's health (McLean, 2009: 24, 27, 33–35). On the one hand, it is stated that such an imbalance is not a mistake and has strict moral justification (Kelley, 2005: 189, 193), considering the historical development of the medical treatment relationship and related events (e.g. the Nuremberg trials [see: Der Nürnberger Kodex, 1947; Der Nürnberger Kodex, 1997]). On the other hand, it is also believed that predominance of any party in the legal relationship in medical treatment is not to be supported (Turner-Warwick, 1994: 16). Social relationships and responsibility in these relationships are changing, and the distribution of responsibility between the medical professional and the patient needs to be reevaluated in the direction of the model of cooperation, partnership and interaction (Williams, 2006; Hirjaba, Häggman-Laitila, Pietilä, Kangasniemi, 2014: 3275; Evans, 2007: 692, 694; McHale, Fox, Murphy, 1997: 82; Roberts, 2004: 232). It is also emphasised that patient duties need to be specified in the medical treatment relationship (Veatch, 1984: 48; A declaration on the promotion of patients’ rights in Europe, 1994: Preamble; Recommendation Nr. R(2000)5, 24 February 2000: Preamble; Charter on patients’ & health service providers’ rights & responsibilities, 2013: Introduction; National patient charter of rights. Consultation report, 2008: s.3.5.; Siegler, 1981: 58). In the modern day, insufficient emphasis on patient duties is a drawback of the medical treatment relationship because the equilibrium in the legal statuses of the parties is too disrupted, which negatively affects the medical treatment relationship.

A direction for the search of a new centring criterion is emerging in the medical treatment relationship. It is stated that depersonalisation is happening in the modern medical treatment relationship (Van Oosten, 1991: 12), which is aimed at eliminating the predominance of any party, and a new relationship model is suggested where the patient and the doctor are viewed together in mutual cooperation and where the medical treatment relationship itself is a tool – two-person medicine (Kaba, Sooriakumaran, 2007: 62), relationship-centred care (Roter, 2006: 304, 314). Essentially this is the treatment of a patient as a customer where medical treatment is viewed as a service with equal participants (Van Oosten, 1991: 12), and Latvia has groundwork for such an approach as well (Pacientu tiesību likums, 2009: 1.p. otrā d. 5.pk.; Ārstniecības likums, 1997: 3.p. pirmā d.; Patērētāju tiesību aizsardzības likums, 1999: 1.p. pirmā d. 3.pk.; Lēmums lietā Nr.SKA-98/2006, 2006; Spriedums lietā Nr.SKA-155/2008, 2008; Preču un pakalpojumu drošuma likums, 2004: 3.p. otrā d.). Emphasis is placed on the service itself and its adequate process through balanced cooperation of the parties. It is noteworthy that such an approach is also receiving criticism. The new model is also being called a commercial or consumerist model where economic factors start determining the nature of the medical treatment relationship more than the medical, psychological and ethical factors (Li, 1996: 918; Siegler, 1981: 60; Ķilkuts, Sīle, 2006: 189). Of course, the effect of the economic factors on any social relationship cannot be denied, which also includes medical treatment where the effect needs to be decreased where possible. However, the idea of the new medical treatment model itself is attractive. The centring in medical treatment is focussed on the relationship itself, on a balanced relationship, which is an objective criterion independent of the parties.

The future medical treatment relationship needs to include centring aimed at an equal legal status of the parties. Literature contains analyses of different models of the legal relationship between the patient and the doctor that in fact offer the paternalism and patient autonomy model with different predominating features. The future relationship model needs to include three principles: first, the medical treatment relationship needs to be more technical, where neither party has the decisive role (Siegler, 1981: 65); second, the idea of patient autonomy is not abandoned but the limits of patient autonomy are being narrowed (Verkerk, 2001: 289–294; Richards, Rathbun, 1999: 209), with duties derived from it (Buetow, 2005: 304; Meyer, 1992: 541–555); third, the centring is to be transferred onto the medical treatment relationship itself rather than its parties. Thus, the technological or technical relationship model is more appropriate. In such a model, the patient and the doctor are equal participants, and their actions are determined by objective medical information about the patient. The decision is taken by the patient, but the patient's will is limited by an objective criterion, i.e. the patient's decision must be objectively justified, following from the patient's health interests. The core of the transaction is a will focused on a legal result, which cannot contradict the law (Civillikums, 1937: 1427.p.; Torgāns u.c., 1998: 45; Kalniņš, 2005: 137). If the core of the medical treatment relationship changes, the proportion of the rights and duties of the parties, as well as their legal consequences, will stabilise. The equilibrium of the legal statuses of the parties depends on the centring, which is more appropriate in relationship-centred care.

All individuals’ duties are not identical in the legal sense and can have different legal effects. The legal system supports a dual origin of duties – moral and normative regulations (Hart, 1974: 445, 458), and only normative regulations provide for their enforcement (Löschke, 2017: 22). Although the existence of a duty does not depend on the size of punishment (Corbin, 1924: 524), still, the enforcement mechanism as a criterion defines the legal effect of the duty, i.e. ethical or normative, with different legal consequences.

The evaluation of the legal effects of patient duties demonstrates disagreement of opinions. According to the general principle, patient duties are recognised as ethical (Buetow, Elwyn, 2006: 262; Evans, 2007: 692, 694; Sider, Clements, 1984: 138; Gillon, 1986: 466; Hirjaba, Häggman-Laitila, Pietilä, Kangasniemi, 2014: 3281; Resnik, 2005: 167), and failure to comply carries social condemnation, with no provision of enforcement (Evans, 2007: 691; Corbin, 1924: 524).

E.g., the Patient's Rights & Responsibilities Bill of Uganda provides that the bill is not binding or enforceable, does not provide for sanctions for patient non-adherence and only provides treatment guidelines (The Patient's Rights & Responsibilities Bill of Uganda, 2019: s.2).

The legal effect of patient duties follows from the nature and main principles of the legal relationship in medical treatment that exists in a particular time period. Nowadays the legal relationship in medical treatment is contractual (Civillikums, 1937: 1427., 1512.p.; Ploem, Mitchell, van Harten, Gevers, 2018: 546; Watson, Kottenhagen, 2018: 12), and adherence to the duties is based on the main principle of this relationship – the pacta sunt servanda principle, which places an obligation to fulfil a legally concluded contract (Civillikums, 1937: 1587.p.; Torgāns u.c., 1998: 117) and thus gives the contractual relationship a normative effect. Still, the legal effects of patient duties are viewed in two different ways. On the one hand, patient duties may be recognised as ethical and normative, where the patient has the option to refuse the patient duties established in normative regulations. As an exception, the legal system provides for the right to withdraw from the contract unilaterally based on the nature of the contract (Civillikums, 1937: 1589.p.). Medical treatment, according to the general principle, is recognised as the kind of relationship where the patient is not involved in the relationship and is retained by force. It is also recognised that patient duties are derived from the ethical pillars – non-maleficence, beneficence and equity (Buetow, 1998: 244), emphasising the ethical origin of these duties. In this evaluation, patient duties, regardless of normative regulations, are recognised as ethical and normative, in the absence of their enforcement. On the other hand, the legal effect of patient duties is viewed as normative, providing for negative consequences for inadequate adherence. In this view, more emphasis is placed on the contractual nature of patient duties, with there being a focus on it (Sider, Clements, 1984: 138–142; Buetow, 1998: 246). Considering that society protects itself from people who are not responsible (Williams, 2006), it is only natural to provide for legal consequences for inadequate adherence to patient duties, considering that nowadays the understanding of health as the public good is also forming (see: Müller, Ganten, Larisch, 2014: A1901; Büchs, Koch, 2019: 162; Australia's health 2014, 2014: 1; Aginam, 2002: 949). The negative consequences of inadequate adherence are characterised by two features which give patient duties the normative effect but are different from the enforcement seen in the pacta sunt servanda principle. First, these negative consequences are not to the benefit of the other contractual party, but largely to the benefit of the patient and society (Sider, Clements, 1984: 138–142; Olsen, 2000: 62). And second, these negative consequences are aimed at creating discomfort or unfavourable consequences for the patient rather than at the enforcement of patient duties, although some exceptions are found.

E.g., the duty to pay to maintain the civil stability and to obtain treatment for public safety is enforced.

The patient is expected to comply with a set of duties to an extent that does not create negative consequences for the patient. The patient has the duty to take active participation in their treatment if their health so allows (Pacientu tiesību likums, 2009: 15.p. otrā daļa), and this duty is the criterion for determining the extent of adherence to patient duties. Thus, if the patient's health is appropriate, the patient is expected to actively fulfil all their duties, which is supported by the idea that almost any treatment will be effective if the patient is involved in it (Lūse, 2007: 60). However, normative regulations do not provide a specific explanation – whether the mere fact of the patient's inactivity in the fulfilment of their duties is sufficient for negative consequences for the patient or the level of activity has to be evaluated to determine proportionate negative consequences for the patient, following from the extent of adherence. The legal practice gives an impression that the level of the patient's activity is evaluated,

E.g., a patient did not undergo an MRI scan, which has been accepted as one of the arguments for non-adherence (Spriedums lietā Nr.A420275718, 2020: 15.pk.). However, the court's verdict lacks a detailed evaluation of the circumstances, e.g. whether the patient, for health reasons, was in an appropriate financial situation to pay for this relatively expensive test; whether the patient, for health reasons, was physically able to travel to the place of testing, because the test is performed in specific medical treatment institutions only.

Different types of legal consequences exist for inadequate adherence to patient duties, which create different negative consequences for the patient. First, the patient's health can deteriorate or even death can occur if patient duties are not properly fulfilled. On the one hand, the patient has the right to refuse a certain treatment method without refusing treatment in general, or the right to refuse all treatment (Pacientu tiesību likums, 2009: 6.p. ceturtā d.). The patient's right to refuse treatment is not limited even if it poses a threat to the patient's health or life if it does not affect public interests (see: Pole v. Region 2 hospital Corporation, 1994; A.C. v. Manitoba (Director of Child and Family Services), 2009: para.44, 194, 198) because the right to live does not mean and cannot be understood as the duty to live (Kovalevska, 2008: 16; Baumgarten, 2000: 120–123). And refusal of treatment also implies refusal to comply with the corresponding patient duties. On the other hand, considering the significant impact of the patient's actions on the result of treatment, the patient in such a case has to take responsibility for the harm to their health or the threat to their life because strict responsibility needs to be provided for the result of such refusal (Kelley, 2005: 196; Olsen, 2000: 60).

E.g., a patient smoked during pregnancy and did not see a doctor in time (Spriedums lietā Nr.A42572108, 2010: 10.pk.); a patient was taking his medication irregularly, which worsened his health; moreover, he continued working in harmful conditions without telling the doctor about these conditions and did not observe the contraindication of the occupational physicians committee (Spriedums lietā Nr.A42471806, 2009: 14.2., 14.8., 22.2.pk.); as a result, the proceedings on an administrative violation by a medical professional was terminated in these cases.

Second, if the patient is not adequately complying with their duties, the doctor has the right to refuse further treatment of the patient. On the one hand, specific patient duties are established, non-fulfilment of which gives rise to this right on the part of the doctor, the most common scenarios of this variety being the patient's failure to follow the prescribed regimen owing to wilful reasons not connected with debility or non-compliance with the recommendations of the medical professional, with the legislation (Ārstniecības likums, 1997: 42.p.) providing a comprehensive list of these duties

E.g., in Hungary, a doctor can also refuse a patient if the patient poses a threat to the life or physical wellbeing of the medical professional (Act CLIV on Health of Hungary, 1997: s.131(5)d)), whereas in Latvia such a possibility is not directly provided.

Third, if the patient is not adequately complying with their duties, the patient loses their right to any material good they are receiving or may receive due to their health problems. This consequence gives rise to two directions. On the one hand, if the patient is not adequately complying with their duties, the patient loses the right to receive material aid from the state due to health problems. The patient is not paid statutory sick pay for the period when they violated the treatment regimen,

As of 1 January 2020, the consequences have been mitigated where, before that, statutory sick pay was not paid for the violation period as well as the following period (Grozījumi likumā „Par maternitātes un slimības apdrošināšanu”, 2019: 7.p.).

Fourth, inadequate adherence to patient duties can create negative legal consequences for the patient in other relationships in which they become involved. Moreover, inadequate adherence to patient duties can have crucial importance in the establishment of such negative consequences.

E.g., a patient was using medication after the end of the prescription period, thus violating the recommendations of the medical professional, and a decision was taken in an administrative case where it was found that the person had been driving a vehicle under the influence of psychotropic drugs (Spriedums lietā Nr.A42235405, 2008: 11.pk.).

Fifth, even though it is not typical for medical treatment, adherence to patient duties can be enforced as an exception if the duties are not being duly fulfilled. On the one hand, this applies to duties that follow directly and only from medical treatment if these duties cannot be compensated for public safety other than by their enforcement (e.g. the duty to obtain treatment in case of specific infectious diseases [Kārtība, kādā veicama personu obligātā medicīniskā un laboratoriskā pārbaude, obligātā un piespiedu izolēšana un ārstēšana infekcijas slimību gadījumos, 2005]). The principle of enforcement of duties for public safety prevails over general principles of legal consequences of inadequate adherence to patient duties. On the other hand, such patient duties are enforceable which follow from general civil rights and also apply to medical treatment as one of the types of civil relationships (e.g. the duty to pay), and thus the principle of civil stability prevails over the principle of patient protection in medical treatment.

Sixth, if patient duties are not adequately fulfilled, legal remedies can be applied as an exception to the benefit of the other party, i.e. the medical professional/institution. This is also a departure because, in such cases, the formulation of the legal consequences/ramifications of inadequate adherence by patients to their duties is carried out in light of the benefit expected to be derived by society as a whole resultant to the healthcare system being organised in a way that is focussed primarily on the goal of productivity maximisation (in particular in terms of patient health improvement), which necessitates cases of non-compliance with medical advice to be encountered with the requisite steps aimed at ensuring that medical staff do not become entangled in adverse legal consequences that might arise from patient non-compliance or self-harm (see: Evans, 2007: 693; Olsen, 2000: 60). For example, if a patient does not observe the written form for refusal of medical treatment, such a refusal is registered through other means, i.e. two witnesses (Pacientu tiesību likums, 2009: 6.p. piektā, sestā d.), and the patient thus preserves the duty to take responsibility for the negative consequences of the refusal of medical treatment, releasing the medical professional/institution from such responsibility.

It can thus be concluded that the legal consequences of inadequate adherence to patient duties primarily manifest as negative consequences for the patient for public benefit. The state does not become involved in the protection of the right to health or decreases such protection, considering the actions of the patient undergoing medical treatment and their harmful consequences for the patient's health. This again emphasises the patient's duty to take care of their health; otherwise, a reaction of the state to the patient's inadequate adherence is triggered.