Dr. Mariam Tamam Al Sabah and Dr. Latifa Walid Al-Zamil
Assistant Professors of Civil Law
Department of Private Law, Faculty of Law
University of Kuwait

Abstract:

One of the fundamental principles of the doctor-patient relationship is the patient’s freedom to refuse medical treatment offered to him. Moreover, judicial principles are stable that the person who caused the damage is responsible for repairing all the damage he caused, and that the injured person is not required to limit his damage for the benefit of the person responsible. This means that compensation must be complete, regardless of the remedial options taken by the injured party.
Therefore, the question of reconciling these two principles is a very delicate topic. For this reason, this study aims to:
First: Explaining the patient’s right to refuse medical intervention, explaining the controls that the doctor must adhere to regarding this refusal, and the impact of this on the therapeutic necessity that requires restricting the patient’s right to refuse.
Second: Determine the legal rules applied in the event that the injured person refuses medical treatment, which are not directly related to the medical relationship, but those that have an impact on compensation, with an explanation of the legal nature of this refusal, and the role of the injured person regarding the damage he suffered.
Third: Evaluating the patient’s right to refuse treatment, in light of the principles governing civil liability.
The study relied on the inductive approach of the general texts in the French and Kuwaiti civil laws, and in the Kuwaiti Law No. 70 of 2020 on the Practice of the Medical Profession and its Supporting Professions and the Rights of Patients and Health Facilities and on French Law No. 4 of March 2002, as well as French Law No. 2016-87 of February 2, 2016 establishing new rights for patients and people at the end of life, in order to find the rules that govern the issues raised in the research.
The study concluded with several results, the most prominent of which is that the injured person has the right to refuse medical treatment, and that such a refusal does not constitute, under French law or Kuwaiti law, an error on the part of the injured person, and does not affect his right to compensation. It became clear to the two researchers, through this study, that the absolute nature of the right to “refuse” treatment is still a matter of debate.
The study recommended that the Kuwaiti legislator consider the issue of introducing an obligation on the injured person to limit the aggravation of the damage he suffered, which would bring about an important change at the level of reasons for partial exemption from civil liability.
Keywords: aggravation of harm, physical harm, full compensation, fault of the injured party, and civil liability.

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