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Patient autonomy: How far have we moved from medical paternalism?

Patient autonomy: How far have we moved from medical paternalism?

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This essay examines the extent to which the law has recognised a move away from the position of medical paternalism to one which respects patient autonomy. This is done by examining the areas of consent and refusal of treatment by adults, abortion, consent and refusal of treatment by minors, and the disclosure of risks.
This essay examines the extent to which the law has recognised a move away from the position of medical paternalism to one which respects patient autonomy. This is done by examining the areas of consent and refusal of treatment by adults, abortion, consent and refusal of treatment by minors, and the disclosure of risks.

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Published by: Undergraduate Awards on Sep 01, 2012
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10/27/2013

 
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”
1
.However, it has been suggestedthat the knowledge gap between doctors and patients bred a paternalistic attitude atthe expense of the patient’s autonomy
2
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”.
3
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”
4
.However, others acknowledge that “One’s degree of autonomy is notfixed but fluctuates in the course of human affairs”
5
, 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…”
6
This principle has been adopted by the common law within the UK, and is illustratedin cases such as
 Re T 
. Here, Lord Donaldson professed that “The law requires thatan adult patient who is mentally and physically capable of exercising a choice
must 
consent if medical treatment of him is to be lawful”
8
. 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.
91
Cited in, Stauch, M. et al (2000)
Sourcebook on Medical Law,
Cavendish Publishing Limited,London.
2
Komrad, M.S. (1983) ‘A Defence of Medical Paternalism: Maximising Patient’s Autonomy’,
 Journal of Medical Ethics
, Vol 9: 38-44.
3
Cited in McHale, J., Fox, M., (2007)
 Health Care Law: Text and Materials
, 2
nd
edition, Sweet andMaxwell, London, p 350.
4
Chester v Afshar [2005] 1 A.C. 134
5
Komrad, op.cit., p 43.
6
Schloendorff v New York State Hospital (1914) 105 NE 92.
7
Re T (Adult: Refusal of medical treatment) [1992] 4 All ER 649
8
Ibid., p 654
9
YF v Turkey [2003] ECHR 24209/94
Student ID: B00350896
 
It is important to note that the competent adult’s right to self-determination is notmerely confined to the ability to consent. In
 Re T 
Lord Donaldson notes that anadult “has an
absolute
right to choose whether to consent to medical treatment, to
refuse
it or to choose one rather than another of the treatments being offered”
 
(italicsadded)
. This evidently recognises the right to self-determination, as refusal of treatment will be held valid notwithstanding that it may be contrary to medicalopinion or ultimately results in death. Nonetheless, Brazier contends that the decisionin
 Re T 
is contradictory and can be regarded as “judges saying one thing… and doinganother”
.Here, refusal of a blood transfusion whilst undergoing a caesarean sectionwas overruled by the Court of Appeal despite claiming that “the patient’s right of choice exists whether the reasons for making that choice are rational, irrational,unknown or even non-existent”
. The decision to overrule her wishes was justified asit was feared the patient’s mother (a devout Jehovah’s Witness) may have overborneher ability to make an independent decision. Thus, although the right to decide for oneself was paramount, where there is any doubt as to the validity of the consent or refusal “that doubt falls to be resolved in favour of the preservation of life”.
It has been considered that Lord Donaldson’s ‘absolute right’ to self-determinationwas not extended in all cases; for instance, pregnant women where believed to have adiminished capacity to consent. This failure to respect the autonomy of the patientwas highlighted in
 Re S 
 
where the High Court ordered an emergency caesareansection despite the patient’s religious objections. However, the Court of Appealrevisited this issue in
 Re MB
where it was held;“a competent woman who has the capacity to decide may, for religiousreasons, other reasons, or for no reasons at all, choose not to have medicalintervention, even though…the consequence may be the death or serioushandicap of the child she bears or her own death...”.
Yet, despite this acknowledgment, the court held that on the facts of this case, a phobia of needles rendered the patient temporarily incompetent, thus she lackedcapacity to refuse treatment.The principle that a competent woman can refuse treatment notwithstanding theconsequences, was reaffirmed in
 St George’s Healthcare v S 
where Judge LJclaimed “while pregnancy increases the personal responsibilities of the pregnantwoman it does not diminish her entitlement to decide whether or not to undergomedical treatment”.
10
See n.7
11
Ibid., pp 653-654
12
Brazier, M. (2003)
 Medicine, Patients And The Law
, 3
rd
edition, Penguin Books Ltd, London. p 94
13
See n.7, p 663
14
Ibid, p 662
15
Re S (adult: refusal of medical treatment) [1992] 4 All ER 671.
16
Re MB (an adult: medical treatment) [1997] 2 FLR 426
17
Ibid, p 437-438
18
St George’s Healthcare NHS Trust v S [1998] 3 All E.R. 673
19
Ibid., p 692
Student ID: B00350896
 
Therefore the ‘absolute right’ to self-determination envisaged by Lord Donaldson,now extends to all competent adults with capacity to comprehend the information, believe it, and who are able to embark on a balancing process.
ABORTION
It is evident from the case law above that the right of autonomy now extends to the pregnant woman’s refusal of treatment; however, it should be examined whether thisright extends to the termination of pregnancy. This highly controversial issue sees theinterests of the foetus competing with those of the mother’s autonomy. Purdyhighlights the importance of self-determination in this area as “pregnancy and birthare not just… a medical matter: they are about shaping a life and creating a family”
;a view supported by Dworkin who contends that the life altering nature of pregnancydemands there should be no restrictions on the availability of abortion.
It isinteresting to note that this highly-emotive subject has created different legal positionsthroughout many jurisdictions, and within the UK itself.Within England and Wales, the Abortion Act 1967
essentially legalised abortions incircumstances other than risk to the patient’s life.
Thus, by including ‘socialgrounds’ (i.e. to prevent harm to the physical or mental wellbeing of the patient, or any pre-existing children) abortion has become accessible to a wider class of women.This clearly indicates recognition of the right to reproductive autonomy. However,others contend that a large degree of medical paternalism in this area remains as theAct “has not replaced the pre-existing criminal law statutes on abortion. Rather, itseffect is to provide a medical practitioner who carries out an abortion…a statutoryimmunity”.
Montgomery supports this as there is no right for the woman to demandan abortion, “instead, it leaves them dependent upon finding a doctor who will co-operate with their wishes”.
This inability to ‘demand’ abortion is supported by thedeeply-grounded position that a doctor cannot be compelled to provide treatment.
Hewson also argues that there is a degree of inconsistency with the principle of self-determination and the 1967 Act. This, she argues, is due to the requirement that the patient’s reasons for termination must be approved by two independent doctors.
Thissuggests that the prima facie development of patient autonomy in this area is not asfully extended as it may seem, as doctors ultimately retain the final decision.It has been argued that “when it comes to abortion rights, Northern Ireland women areeffectively second class citizens”.
This is largely because no equivalent to the 1967Act exists in the province, and instead, the Offences Against the Person Act 1861continues to criminalise abortion. However, some advancement has been made by the
20
See n.16
21
Purdy, L. (2006) ‘Women’s Reproductive Autonomy: Medicalisation and Beyond’,
 Journal of  Medical Ethics
,Vol 32: 287-291
22
Cited in, Wyatt, J. (2001) ‘Medical Paternalism and the Fetus’,
 Journal of Medical Ethics
, vol 27, pp15-20.
23
As amended by the Human Fertilisation and Embryology Act 1990.
24
R v Bourne [1939] 1 KB 687
25
Stauch, M., et al, op.cit. p 420
26
Montgomery, J. (1997)
 Health Care Law
, Oxford : Oxford University Press.
27
Re J [1992] 4 All E.R. 614
28
Hewson, B., ‘Abortion Ethics and the Law: Issues for the New Millennium’.
29
BBC News, ‘MPs Pushing Abortion Rights in NI’, 23
rd
July 2008.
Student ID: B00350896

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