A central tenet to much ethical argument within medical law is patient autonomy.1 Although we have seen a welcome move away from a system governed by largely unchecked paternalism, there is not universal agreement on the direction in which medical law should advance.2 Competing concerns for greater welfare and individual freedom, complicated by an overarching commitment to value-pluralism, make this a tricky area of policy-development.3 Furthermore, there are distinct understandings of, and justifications for, different conceptions of autonomy.4 In this paper, we argue that in response to these issues, there has been a failure by the courts properly to distinguish political concepts of liberty and moral concepts of autonomy.

Autonomy is a concept that holds much appeal to social and legal philosophers. Within a medical context, it is often argued that it should be afforded supremacy over other concepts and interests. When respect for autonomy merely requires non-intervention, an adult's right to refuse treatment is held at law to be absolute. This apparently simple statement of principle does not hold true in practice. This is in part because an individual must be found to be competent to make a valid refusal of consent to medical treatment, and capacity to decide is not an absolute concept. But further to this, I argue that there are three relevant understandings of autonomy within our society, and each can demand in differing cases that different courses of action be followed. Judges, perhaps inadvertently, have been able to take advantage of the equivocal nature of the concept to come tacitly to decisions that reflect their own moral judgments of patients or decisions made in particular cases. The result is the inconsistent application of principle. I ask whether this is an unforeseen outcome or if it reflects a wilful disregard for equal treatment in favour of silent moral judgments in legal cases. Whatever the cause, I suggest that once this practice is seen to occur, acceptable justification of it in some cases is difficult to find.

This article examines medical decision-making, arguing that the law, properly understood, requires where possible that equal weight be given to the wishes, feelings, beliefs, and values of patients who have, and patients who are deemed to lack, decision-making capacity. It responds critically to dominant lines of reasoning that are advanced and applied in the Court of Protection, and suggests that for patient-centred practice to be achieved, we do not need to revise the law, but do need to ensure robust interpretation and application of the law. The argument is based on conceptual analysis of the law’s framing of patients and medical decisions, and legal analysis of evolving and contemporary norms governing the best interests standard.

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In this paper, the ethical and legal issues raised by the deactivation of implantable cardioverter-defibrillators (ICDs) in patients with terminal cancer is considered. It is argued that the ICD cannot be well described either as a treatment or as a non-treatment option, and thus raises complex questions regarding how rules governing deactivation should be framed. A new category called “integral devices” is proposed. Integral devices require their own special rules, reflecting their position as a “halfway house” between a form of treatment and a part of the body. The practical problems faced by doctors working in palliative medicine with regard to the deactivation of ICDs are also considered.