Constitutional Right of Privacy

The U.S. constitution contains no express right to privacy.  However, the Bill of Rights reflects a protection of specific aspects of privacy, such as the privacy of beliefs, privacy of the person and possessions as against unreasonable searches, privilege against self incrimination that provides protection for the privacy of personal information.  Therefore, a right of personal privacy or a guarantee of certain areas or zones of privacy does exist as such under the U.S. constitution[i].

It is to be noted that the right to refuse treatment or the right to privacy are not absolute. The preservation of life, prevention of homicide and suicide, protection of interests of innocent third parties, and the maintenance of the ethical integrity of the medical profession are to be balanced[ii].

Under some jurisdictions, it is established that a competent person can refuse medical treatment[iii], even if the withdrawal of such treatment will result in death.  In other words, a conscious adult patient who is mentally competent has the right to refuse medical treatment, even when the best medical opinion deems it essential to save his/her life[iv].  An incompetent person has the right to have life sustaining medical treatment terminated if it is established that such person expressed the desire to invoke that right when s/he was competent.

Whereas in some other jurisdictions there is a general right guaranteed to all persons to refuse medical treatment in appropriate circumstances.  The recognition of that right must extend to the case of an incompetent, as well as a competent patient because the value of human dignity extends to both[v].

Consent must be given by an adult before a physician performs an operation.  A surgeon who performs an operation without the consent of his/her patient commits an assault and such person will be liable for damages[vi].  This rule is not applicable in cases of emergency where the patient is unconscious and surgery is necessary.

Although the U.S. constitution does not explicitly guarantee a right of privacy, the court decisions have recognized that a right of personal privacy exists and that certain areas of privacy are guaranteed under the constitution[vii].

[i] Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988)

[ii] Id

[iii] DeGrella v. Elston, 858 S.W.2d 698 (Ky. 1993)

[iv] In re Application of Eichner, 102 Misc. 2d 184 (N.Y. Sup. Ct. 1979)

[v] Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728 (Mass. 1977)

[vi] Application of Long Island Jewish-Hillside Medical Center, 73 Misc. 2d 395 (N.Y. Sup. Ct. 1973)

[vii] In re Quinlan, 70 N.J. 10 (N.J. 1976)


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