dissenting.
I agree with my colleagues that summary judgment for St. Clair County on Hunter’s § 1983 claim was appropriate. I disagree, however, with the majority’s decision to reinstate Hunter’s medical-malpractice claim against Dr. Amin. The district court properly entered summary judgment against Hunter on that claim as well, and I would affirm the judgment in its entirety.
Under Illinois law “[t]he duty of a physician to render competent medical care arises as a consequence of the physician-patient relationship.” Curtis v. Jaskey, 326 Ill.App.3d 90, 259 Ill.Dec. 901, 759 N.E.2d 962, 968 (2001). A physician must have the patient’s consent before rendering treatment. “Absent consent, whether express or implied, a physician has no right to render medical treatment to a patient.” Id. The Illinois Supreme Court has emphasized that “a patient normally must consent to medical treatment of any kind.” Keiner v. Cmty. Convalescent Ctr. (In re Estate of Longeway), 133 Ill.2d 33, 139 Ill.Dec.780, 549 N.E.2d 292, 297 (1989) (emphasis added). And “because a physician must obtain consent from a patient prior to initiating medical treatment, ... the patient has a common law right to withhold consent and thus refuse treatment.” Id. This “incorporates all types of medical treatment, including life-saving or life-sustaining procedures.” Id. Accordingly, where a patient refuses consent to treatment, Illinois holds that no duty to render competent treatment arises and no action for medical malpractice may be maintained. See Curtis, 259 Ill.Dec. 901, 759 N.E.2d at 968 (“Where a patient refuses to consent to a medical procedure, no duty arises on behalf of a physician to perform that procedure such that the physician can be held liable for failing to perform it.”).
My colleagues conclude that although these principles preclude liability predicated on Dr. Amiris failed attempt to conduct a psychiatric examination of Bell, the doctor nonetheless may be held liable for discontinuing Bell’s medication. I disagree. As the foregoing authorities make clear, a physician’s right to render medical treatment — and therefore his duty to render competent treatment — arises when a physician-patient relationship is established and depends upon the patient’s consent. Prescribing medication is a form of medical treatment. Here, a physician-patient *493relationship was not established and therefore a right to treat did not arise because Bell refused to consent to the psychiatric examination that was a necessary predicate to Dr. Amin’s treatment decisions— including the decision to prescribe medication for the treatment of Bell’s then-extant psychiatric condition. Because Bell refused to consent to the examination, Dr. Amin had no right to render treatment— no right, that is, to prescribe medication. As such, there is no duty and therefore no basis for a medical-malpractice action.
To be more specific, the undisputed facts are as follows: Bell was booked into the St. Clair County Jail a week before Dr. Amin’s failed attempt to examine him. When he arrived, he was taking certain prescriptions for bipolar disorder. One was Prozac, an antidepressant; another was Elavil (amitriptyline), sometimes prescribed as a sleep aid. Elavil was classified as a “concern medication” under Illinois Department of Corrections policy, and the department did not permit its use in Illinois correctional facilities. Accordingly, Dr. Amin substituted an alternative sleep aid — trazodone—and scheduled Bell for an examination the following week during his regular visit to the jail.
As my colleagues explain, at that appointment Bell became agitated at the presence of a correctional officer. He was told that the officer was required to remain in the room during the examination, and at this his agitation increased. Dr. Amin made a tentative judgment based on Bell’s behavior that he was suffering a manic episode and needed a different mix of psychotropic medications. The doctor testified in his deposition that Prozac can cause mania in patients with bipolar disorder and he thought Bell should stop taking it; he also suspected Bell needed a mood stabilizer. But the doctor needed to conduct a full psychiatric examination before prescribing medications.
Dr. Amin tried to explain to Bell that he needed to conduct the examination in order to prescribe medication and that Bell’s medication would be discontinued if he refused to be examined. This only angered Bell more and he ultimately refused to be examined. He was given a “Release of Responsibility” form, which he crumpled up and threw away. Dr. Amin planned to attempt another exam the following week. But based on Bell’s refusal to consent to the psychiatric examination, his prior medications were discontinued and no new ones were prescribed. Bell committed suicide before his next appointment with Dr. Amin.
My colleagues have concluded that the discontinuation of Bell’s prior medications is separately actionable even though the failed psychiatric examination is not. They base this conclusion on a subsidiary one: that the psychiatric examination was not necessary for Dr. Amin to continue to prescribe the medications Bell was taking when he entered the jail. Maj. op. at 491. There is no support for this in the record. Drug-prescription decisions are medical decisions, and Hunter presented no expert medical evidence to contradict Dr. Amin’s testimony that he needed a current psychiatric examination before prescribing medications.
My colleagues point to the fact that when Bell first arrived at the jail, Dr. Amin substituted trazodone for amitriptyline, Bell’s previously prescribed sleep aid, and that he made this decision without examining Bell. This does not establish that the psychiatric exam was unnecessary to Dr. Amin’s prescription decisions at the time he first attempted to examine Bell. It is undisputed that Dr. Amin made the drug substitution upon Bell’s admission to the jail because state regulations prohibit*494ed the use of amitriptyline. That Bell was continued on this substitute sleep aid and his other medications during his first week in the jail — before he saw Dr. Amin — does not establish that a psychiatric examination was unnecessary to the treatment decisions Dr. Amin needed to make when he first saw Bell a week later. At the time of his admission into the jail, Bell had not yet seen Dr. Amin or refused the psychiatric examination, and his continued receipt of his prior prescription medications during this interim period falls within Illinois’ doctrine of implied consent. Curtis, 259 Ill. Dec. 901, 759 N.E.2d at 967-68 (consent is implied based on an existing emergency or other circumstances under which the patient’s actual consent cannot be obtained).
But when actual consent to treat has been sought and refused, this doctrine falls away and the doctor has no right to treat. Id. at 968. Once Bell refused to consent to the psychiatric examination, Dr. Amin lacked the right to render treatment. This meant he had no right to prescribe medications' — either those Bell had been taking or new medications. Because of Bell’s refusal, no physician-patient relationship was established and no right or duty to treat arose. Therefore, there is no basis for medical-malpractice liability. The district court properly entered summary judgment for Dr. Amin. Accordingly, I must respectfully dissent.