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Law Notes Medical Law Notes

Autonomy Ethical Issues Notes

Updated Autonomy Ethical Issues Notes

Medical Law Notes

Medical Law

Approximately 1067 pages

Medical Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB medical law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

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Consent – the Ethical dimensions

Ethics and Autonomy

  • By emphasising the principle of autonomy

    • We’ve moved from a “doctor knows best” attitude

    • To one where the rights of the patient are recognised

  • The importance of autonomy

    • Cardozo J:

      • Every human being of adult years and sound mind has a right to determine what shall be done with his own body

        • And a surgeon who performs an operation without his patient’s consent commits and assault

    • Much as the medical profession might believe a procedure to be in a patient’s best interests

      • Or may even be morally required for a patient

        • It is still seen as morally wrong to force that treatment on the patient

        • Kennedy: if the beliefs and values of the patient, though incomprehensible to some, have formed the basis of the patient’s decisions about his life

          • There is a strong argument to suggest that the doctor should respect and give effect to a patient’s decision based on them

          • To argue otherwise would effectively rob that patient of a right to his personality –

            • something for more serious and destructive than anything that could follow from the patient’s decision to the proposed treatment

Should autonomy be absolute?

  • Are all autonomous decisions worthy of respect?

    • Keown: The capacity to choose brings with it the responsibility of making not just any old choice, but choices which promote human flourishing

      • Many choices from different lifestyles do allow human flourishing

        • But it is difficult to see why patently immoral choices, clearly inconsistent with human well-being, merit any respect

        • The exercise of autonomy merits respect only when it is exercised in accordance with a framework of sound moral values.

    • Herring: Supporters would reply that there is a difficulty in identifying what decisions are “consistent with human flourishing”

      • Some people might say that train spotting is inconsistent, but it is an activity greatly valued by some

      • But then, Keown has a point – is a life spent reading porn one deserving of respect?

        • Letting people live their lives as they want can lead to disastrous results

    • Me: Society cannot function if everyone just does what they want

      • There have to be certain agreed principles which people have for society to function

        • Making an autonomous decision to reject these means that we need sanctions etc. to keep society functional

        • Or else force that person out of society

  • Emphasis on autonomy overlooks other important values

    • There is a danger that the focus on autonomy overlooks other important values

      • Such as achieving community goals

      • Or notions of justice

      • Or the importance of our relationships in the lives of others

  • What extent can healthcare decisions be autonomous?

    • Schwab: Study showed that how the choice is presented may influence us

      • So when patients were given the choice of two different treatments together with the percentage of people who survived the treatments

        • Then 18% chose the first treatment

      • When patients were given the choice between the same treatments but given the percentage of people who had died from treatment

        • Then 44% chose the first treatment, despite the statistic being the same, just presented differently

    • Maclean: There are three broad conceptions of autonomy

      • The distinctions show that what actually is autonomy varies from person to person.

        • Libertarian approach: where autonomy is seen as simply self-determination

        • The liberal view: which requires this but adds the requirement of rationality

        • And the communitarian approach: which requires autonomy to have some substantive moral content to it

    • To what extent should autonomy vary with risk?

      • This concerns the concept of “relative risk capacity” – essentially that where P wants to make a decision that causes her serious harm

        • Then we require a lot more evidence to prove her capacity than if the proposal carries little risk.

        • Herring: This assumes that people perceive risk badly – in fact, it’s clear that someone either understands an issue or not

          • The degree of risk should not affect the assessment of their comprehension

          • O’Neill: Requiring a patient to consent is not the same thing as respecting autonomy.

Alternative versions of autonomy: relational autonomy

  • In light of these criticisms, maybe we need to find a new way of understanding autonomy rather than just abandoning it

    • A very popular approach is relational autonomy:

      • This is the rejection of the idea that we live as unconnected individuals

        • The traditional notion of autonomy promotes the concept of an...

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