Varied and Principled Understandings of Autonomy in English Law: Justifiable Inconsistency or Blinkered Moralism?

Abstract

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.

Best Interests, Public Interest, and the Power of the Medical Profession

“…4 ; and how can we possibly presume that doing what is best for an individual is the best thing overall? 5 To the epistemic objection we can give a fairly straightforward response.…”

Whatever You Want? Beyond the Patient in Medical Law

“…They would almost certainly have known of her decision, 6 but it seems they were exempted from their duty to protect her life or health. The duty to act in a patient's best interests is more readily associated with the (non-)treatment of incompetent patients; 7 where the patient is competent, as I have just suggested, their wishes come first. Butler-Sloss, again, provides a useful illustration of principles' interaction, in a case in which she assessed whether ventilator-dependent Ms B was entitled to have treatment withdrawn at her request: the principles of autonomy and beneficence would appear to be in conflict in this case.…”

“…Respect for autonomy is a case in point. John Coggon has persuasively argued that there are three potentially competing views of autonomy at play in English law [7]. The first of these is premised on a conception of ideal desire autonomy, in which a truly autonomous decision is one which accords with some allegedly universal or objective goods.…”

“…For a more detailed argument to this effect, see[17, p. 76] 6. Not only might we reasonably assume that they would have learned of her decision in the course of their ongoing relationship with her, but she also publicised her decision in the local and national media 7. Note, for example, the Mental Capacity Act 2005 and the earlier leading rulings in Re F [34] and Re A [32].…”

Determining Capacity to Make Medical Treatment Decisions: Problems Implementing the Mental Capacity Act 2005

“…This reflects the primacy of the best interests principle 117 in decisions about minors and wide disagreement as to how best to protect best interests when young people refuse life-sustaining treatment. The 'evolving capacities' approach of the UN Convention on the Rights of the Child can arguably be accommodated within a future-orientated view of autonomy 118 in which case refusals of treatment might be overruled to protect minors' 'best-desire' or 'ideal-desire' 119 autonomy, rather than their current desire. I have argued elsewhere that a sufficiently robust capacity test would protect best interests, 120 in which case young peoples' capax decisions should be upheld in the same way as adults'.…”