#1700 - Autonomy Ethical Issues - Medical Law

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 isolated patient deciding for himself what is his best interests

        • Whereas in fact we live our lives based on inter-dependent relationships

    • The question therefore is not: “what is best for me”, but “given the responsibilities owed to me by others, what it the most appropriate course of action?”

      • Mackenzie: We need autonomy based on promoting the values of love, loyalty, friendship and care

      • Herring: This means that we consider medical decisions as not just for the patient, but consider also the impact of the decision to those they are in relationships with.

        • e.g. a study for treatment into breast cancer found that the women being treated who had partners

          • regarded the treatment decision as a joint one with their partners

            • rather than a decision just for them.

  • Problems?

    • There is concern that relational autonomy could be used to reinforce the traditional caring roles women have played in our society

      • And trap individuals into decisions prescribed by culture to which they don’t subscribe.

    • Christman:

      • Just as conceiving of persons as denuded of social relations denies the importance of such relations to the self understandings of many of us at various times of our lives

        • To define persons as necessarily related in particular ways similarly denies the reality of chance over time, self-conception and the multiplicities of identity characteristic of modern populations

• Herring: Autonomy need not be all or noting

  • Critical of law’s rigid two box approach

    • Either you have capacity or you don’t

    • There’s no room for people on the margins of capacity – those who are nearly incompetent but not quite – treated as entirely competent

  • A move to a more flexible approach

    • E.g. make a decision, fairly autonomous, but not as much weight attached to decision that fully autonomous decision

      • Scale of weight to degrees of autonomy

      • Give some weight so some understanding, but not as much as if fully understanding

        • In middle category, might not allow someone to make a decision about death.

• Best desire autonomy

  • Leads to an action decided upon because it reflects a person’s overall desire given his own values

    • Even if this runs contrary to immediate desire

      • E.g might have religious values or goals or ethical precepts you...