#10054 - Autonomy - Medical Law and Ethics

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. INCONSISTENCY IN LAW

1. Herring – right not to be touched in other areas of law eg. police search s.55 PACE 1984

6. WESTERN PHILOSOPHY

1. Holm – it’s a US philosophy, ties with American dream, can’t just be applied without cultural roots

7. TRUST MORE IMPORTANT

• Onora O’Neill – trust more important than autonomy

• Me: where patient disagrees with doctor in the moment, perhaps in hindsight they’d wish doctor would have overridden their choices ie. case where women said no to C-section because fear of needles

DEPRESSION FACTS

a) a number of people depressed when making end of life decisions

AUTONOMY AND END OF LIFE DECISIONS

1. PRO-AUTONOMY

1. Pedain – person’s decision respected not because it’s a good choice, but because it’s their choice

2. Harris – denying this right is the ultimate denial of respect for the person

3. Dworkin – ‘making someone die in a way that others approve, but he believes a horrifying contradiction of his life, is a devastating odious form of tyranny’

4. CRITICAL INTEREST

1. Dworkin – says our ‘critical interests’ should be respected (these our the interests that make us who we are) HOWEVER

2. Harris – acknowledges how this opens the door to deny right to end life as it could seem incongruent with our critical interests during our life PLUS

3. Greasley – denies that how we die is a critical interest

2. ANTI-AUTONOMY

1. AFFECTS FAMILY

1. HoL Select Committee (1993) – ‘dying is not only a personal or individual affair.’ Death affects others, so autonomy needs to be weighed against this

2. LACK OF COMPETENCE

1. Crul – no person suffering pain and anguish close to death is sufficiently competent to make the decision (but Re B undermines this as the woman wasn’t in pain then and still wanted to die)

2. Royal College of Psychiatrists (2006) – report showed that 99% patients seeking euthanasia who were treated for depression changed their mind

3. INCONGRUENT WITH AUTONOMY

1. Greasley – death is the end of choice and options, whereas autonomy is all about right to make choices, so the two are incongruent

4. HYPOCRISY IN DEBATE

1. Dworkin –accepted limit to it (ie. where predicted to die within 6 months)

2. Gormally – even supporters of autonomy contradict themselves (eg. love-struck teenager (Keown)

ALTERNATIVE

1. PRINCIPALISM

1. Beauchamp & Childress...