Beauchamp and McCullogh argue that to afford patient autonomy with respect, thedecision must be made by a person with “the ability to understand one’s situation and pursue personal goals free of governing constraints”
.However, it has been suggestedthat the knowledge gap between doctors and patients bred a paternalistic attitude atthe expense of the patient’s autonomy
though Shultz notes this has changed. “Asmedicine has become able to extend life, delay and redefine death, harvest andtransplant organs… questions about values have come to the fore in medical decisionmaking”.
On this point questions arise as to what degree of autonomy (if any) a patient should have within the medical context. On the one hand, there are those whoadvocate for full autonomy, where the patient is fully informed and their choicesalways adhered to. For instance, Lord Steyn claimed that “every individual of adultyears and sound mind has a right to decide what may or may not be done with his or her body”
.However, others acknowledge that “One’s degree of autonomy is notfixed but fluctuates in the course of human affairs”
, therefore a degree of paternalismis required when the patient is temporarily or permanently incompetent. This paper intends to explore the extent to which the medical profession has moved away from a paternalistic approach and the extent to which autonomy is respected. This will bedone by examining the areas relating to the consent and refusal of treatment by adults;abortion (both in England and Wales and Northern Ireland); the consent and refusal of treatment of minors; and finally the duty to disclose risks.
CONSENT AND REFUSAL OF TREATMENT: ADULTS
It is deeply-rooted that the need to obtain consent is essential, both to protect doctorsfrom criminal and civil actions, and to protect the autonomy and self-determination.This was expressed in 1914 when Cardozo J noted that;“Every human being of adult years and sound mind has a right to determinewhat shall be done with his own body; and a surgeon who performs anoperation without his patients consent, commits an assault…”
This principle has been adopted by the common law within the UK, and is illustratedin cases such as
. Here, Lord Donaldson professed that “The law requires thatan adult patient who is mentally and physically capable of exercising a choice
consent if medical treatment of him is to be lawful”
. This need for consent has gainedimportance with the incorporation of the European Convention on Human Rights intoUK legislation. Here, the notion of consent and autonomy is protected under Art 8,where treatment is an interference with an individual’s physical and psychologicalintegrity if no consent is obtained.
Cited in, Stauch, M. et al (2000)
Sourcebook on Medical Law,
Cavendish Publishing Limited,London.
Komrad, M.S. (1983) ‘A Defence of Medical Paternalism: Maximising Patient’s Autonomy’,
Journal of Medical Ethics
, Vol 9: 38-44.
Cited in McHale, J., Fox, M., (2007)
Health Care Law: Text and Materials
edition, Sweet andMaxwell, London, p 350.
Chester v Afshar  1 A.C. 134
Komrad, op.cit., p 43.
Schloendorff v New York State Hospital (1914) 105 NE 92.
Re T (Adult: Refusal of medical treatment)  4 All ER 649
Ibid., p 654
YF v Turkey  ECHR 24209/94
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