Autonomy Notes

AUTONOMY

OPENING QUOTE

1. Charles Foster – ‘any society whose sole principle is autonomy is unreflective, shallow and dangerous

WHAT IS IT

1. Autonomy relates to the idea that a rational patient should be allowed to make informed, un-coerced decisions about their bodies and healthcare

2. Cadizo J- American judge in 1914 said that, ‘Every human being of adult years and sound mind has a right to determine what shall be done with his own body’ HOWEVER

3. Maclean – notes how there are many different conceptions of what autonomy is. Some see it as the ability to make un-coerced decisions, whereas Coggon and Miola say this is liberty

IT’S THE MOST IMPORTANT PART OF MEDICAL LAW

1. Foster – in 2009 referred to the ‘triumph of autonomy’, previously had suggested that autonomy was an antidote to the ‘doctor knows best’ medical paternalism that permeated medicine

2. Brazier – less trust in doctors due to scandals led to it

3. Bailey-Harris – replacing medical paternalism with autonomy has led to less controversial decisions, especially where uncertainty on what is in the patient’s best interests

4. Ex p Brady – Kay J said that regrettably the rights of patients count for everything whilst other ethical values count for nothing

5. Re B: Butler Sloss P confirmed woman on ventilator could refuse treatment

6. Glover-Thomas – patients have access to more health care information now then ever

7. NHS (2010) – patient services are now described as ‘patient-led’

8. Chester v Afshar – the public policy ground adaptation to ‘but for’ so that people can make informed decisions

IN PRACTICE IT’S NOT THAT IMPORTANT

1. Wolpe (1998) – there is still a ‘clinical nature of trust’ whereby patients, lacking understanding, accede to doctor’s proposals

2. Cassileth et al – their research showed how many patients lack understanding

3. Tallis – could be inefficient for doctors to get informed consent RESOURCES

4. Stern – people don’t want to make decisions (ie. research showed that most people don’t want to think about death so don’t make advance directives)

5. Re (Burke) v GMC – patient can’t demand doctors treat him where doctor thought medically inappropriate

6. Female Genital Mutilation Act 2003 – prevents female genital mutilation, shows how autonomy does have its limits

IT SHOULDN’T BE SO IMPORTANT - BRIIIWT

1. BAD DECISIONS

1. Keown – bad decisions that undermine human flourishing shouldn’t be respected

2. Flamme & Foster – even pro-autonomy advocates scrutinize competency of decision maker ie. love-struck teenager (Keown) with death, Dworking only where death within 6 months and abortions at 36 weeks

3. Herring – BUT difficulty in drawing line between good/bad decisions

4. St George’s v A (CA) – woman at 35 weeks pregnant told she needed a caesarean but demanded the baby be born naturally, even though risk to baby and mother as a result. Declaration was given that the caesarean was permissible, however, after the birth judicial review held that this was unlawful CONTRAST

5. Re MB (An Adult: Medical Treatment) (CA) – 40 weeks pregnant woman refused caesarian section because she had a phobia of needles so couldn’t consent to anaesthesia. Her life and that of her unborn child were therefore at risk. CA held that this woman’s view was so outrageous in defiance of logic that she was temporarily incompetent so that forcing the needle would have been acceptable

6. Mason and Laurie – say how St George’s emphasizes how law should be able to override competent patients refusal of medical treatment, as otherwise there is too much heed to ‘cult of self-determination’

2. REAL CHOICE?

1. Craigic – decision based on mistakes or ideas contrary to person’s life values carry less weight

2. Coggon - 3 versions of autonomy identified

1. ideal desire autonomy – what person should want

2. Best desire autonomy – what person wants in accordance with their values, even though contrary to what they say immediately

3. Current desire autonomy – person’s immediate inclinations

3. IMPACT ON OTHERS

1. McCall Smith – emphasis on autonomy overlooks importance of obligations people have to others

4. INCOMPETENT

1. Herring – how can premier principle not apply to so many people lacking capacity, who don’t have respect for their autonomy HOWEVER

2. Coggon and Miola – emphasise that autonomy is different from liberty. Autonomy relates to free will and whether the agent has the rational acumen (mental capacity) to reach a decision, whereas, liberty relates to freedom to act without the interference of a third party. Thus autonomy directly relates to capacity.

5. I...

Buy the full version of these notes or essay plans and more in our Medical Law and Ethics Notes.