Autonomy, Consent and the Law

Sheila A.M. McLean

• Publisher: Routledge
• Year: 2009
• Print ISBN: 9780415473408
• eBook ISBN: 9781135219048
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Autonomy is often said to be the dominant ethical principle in modern bioethics, and it is also important in law. Respect for autonomy is said to underpin the law of consent, which is theoretically designed to protect the right of patients to make decisions based on their own values and for their own reasons. The notion that consent underpins beneficent and lawful medical intervention is deeply rooted in the jurisprudence of countries throughout the world. However, Autonomy, Consent and the Law challenges the relationship between consent rules and autonomy, arguing that the very nature of the legal process inhibits its ability to respect autonomy, specifically in cases where patients argue that their ability to act autonomously has been reduced or denied as a result of the withholding of information which they would have wanted to receive.

Sheila McLean further argues that the bioethical debate about the true nature of autonomy – while rich and challenging – has had little if any impact on the law. Using the alleged distinction between the individualistic and the relational models of autonomy as a template, the author proposes that, while it might be assumed that the version ostensibly preferred by law – roughly equivalent to the individualistic model – would be transparently and consistently applied, in fact courts have vacillated between the two to achieve policy-based objectives. This is highlighted by examination of four specific areas of the law which most readily lend themselves to consideration of the application of the autonomy principle: namely refusal of life-sustaining treatment and assisted dying, maternal/foetal issues, genetics and transplantation.

This book will be of great interest to scholars of medical law and bioethics.

Chapter 1
From Hippocrates to paternalism to autonomy: the new hegemony

The art of medicine has been practised for centuries. Over that time, some of its ethical foundations have been modified, reflecting the social, political and other changes that have occurred. Medical ethics have ultimately transcended the ‘closed shop’ ideology of Hippocrates, largely eschewed the dominance of paternalism and now flourish (or not) in the spotlight of autonomy. In the time since the Hippocratic Oath was first promulgated, the practice of medicine has changed dramatically and this is reflected in the way doctors now engage with patients and public alike. The rudimentary techniques available to the early physicians have been replaced by a discipline firmly grounded in science, although, of course, an element of ‘art’ remains in everyday practice. In addition, since probably around the mid-19th century, medicine has become thoroughly professionalised with the concomitant responsibilities – legal and ethical – that flow from this. Moreover, medicine, its practitioners and its patients now live in a world where the dominant language is that of human rights. The traditional, relatively simple, reliance on the physician has shifted towards recognition that those whom they serve also have legitimate interests and viewpoints, and a right to be engaged in treatment decisions.

Patients’ medical interests are no longer seen as separable from their personal ones, and the assumption that the best medical advice determines the optimal outcome of the doctor/patient encounter no longer holds. Acceptance that ‘[h]ealth care choices involve profound questions that are not finally referable to professional expertise … ’ ¹ has had significant consequences for the doctor/patient relationship. The assertion that patients have rights in making healthcare decisions is reflected in the general recognition that autonomy is the transcending principle of modern bioethics, and its influence pervades – at least in theory – every clinical encounter and every medical act. Personal choices about healthcare are taken, by and large, to be definitive,

¹ Schultz, M M, ‘From Informed Consent to Patient Choice: A New Protected Interest’, The Yale Law Journal, 95(2), December 1985: 219–99, at p 222.

albeit that they will often be rooted in clinical advice and recommendations. Reinforcing this notion of ‘patient power’, Schultz says that in most situations where healthcare decisions have personal consequences and cause little or no harm to others, then ‘the case for respecting patient autonomy in decisions about health and bodily fate is very strong’. ²

The emergence of autonomy as the guiding concept in biomedical ethics has occurred relatively recently and co-exists with the growth in the importance of the language of human rights. Autonomy rules, then, but as we will see, its precise meaning is far from agreed and some commentary seems unclear about whether the mere existence of (legal) decision-making capacity – which is a pre-existing condition of autonomy – is sufficient to demand respect for decisions made by the competent person. The way in which patients’ decisions are dealt with in both law and medicine is shaped in part by the history of medical practice itself, so before analysing autonomy, autonomous decisions and the law of consent in more depth it is important to explain how the physician/patient relationship has developed throughout the main stages of its history. The earliest of these stages is the Hippocratic era.

The Hippocratic tradition

Despite the fact that doctors still cling to some of the commitments of the classical Hippocratic Oath, many of its terms are ‘honoured’ as much in the breach as in the observance. For example, although the obligation of confidentiality is still taken seriously, ³ there is no longer a commitment to providing free education to the offspring of your teacher or giving your teacher money in the event of hardship. ⁴ And while doctors still (in some countries at least) forebear from assisting a patient to die, not all of them do, and many of them will participate in the termination of pregnancy. ⁵ The standing of the Oath, therefore, has changed over the years. Miles says that:

² Ibid., at p 220.

³ ‘What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself, holding such things shameful to be spoken about’, available at http://www.pbs.org/wgbh/nova/doctors/oath_classical.html (accessed on 5/5/2008).

⁴ ‘To hold him who has taught me this art as equal to my parents and to live my life in partnership with him, and if he is in need of money to give him a share of mine, and to regard his offspring as equal to my brothers in male lineage and to teach them this art – if they desire to learn it – without fee and covenant; to give a share of precepts and oral instruction and all the other learning to my sons and to the sons of him who has instructed me and to pupils who have signed the covenant and have taken an oath according to the medical law, but no one else.’

⁵ ‘I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art.’

The possibility that Greek medical ethics was simply about clinical ethics and bedside etiquette must be kept in mind as the Oath is examined for evidence that it spoke of the civic responsibilities of physician or of norms to address professional conflicts with the social order. Today we tend to describe societal ethics using words like human rights, fairness, and justice. ⁶

Currently, updated and/or substitute versions of the Hippocratic Oath abound, ⁷ many of which incorporate values which can be described as more modern, such as knowing when to admit ignorance, and not ‘playing God’. They also remind doctors of their role as members of a society; not simply as experts in medicine. ⁸ Interestingly, modern oaths have ditched some of the main planks of the Hippocratic Oath – even those that were traditionally seen as the most fundamental. Thus, in a study in 1993, ⁹ for example, it was found that ‘only 14 percent of modern oaths prohibit euthanasia, 11 percent hold covenant with a deity, 8 percent foreswear abortion, and a mere 3 percent forbid sexual contact with patients.’ ¹⁰

In a brief article published in 2000, Graham actually doubts the value of oaths (classical or modern) themselves and proposes that the medical profession needs to engage with this issue, presumably since medicine is an inherently social enterprise which needs to be socially relevant and morally nuanced. ¹¹ Indeed, in their seminal writing, Beauchamp and Childress note that there is concern about ‘whether the codes specific to areas of science, medicine, and health care are comprehensive, coherent, and plausible.’ ¹² They also observe that the codes promulgated by and on behalf of doctors have seldom been open to the critique of patients (and others) and ‘have rarely appealed to more general ethical standards or to a source of moral authority beyond the traditions and judgments of physicians.’ ¹³ The classic Hippocratic tradition, and the codes associated with it, can be said to describe what is seen (at any given time) as professionally appropriate behaviour, but fail to offer a morally relevant rationale for according it societal authority. in large part this is because, as Pellegrino and Thomasma say, ‘[a]ll codes to date have been

⁶ Miles, S, The Hippocratic Oath and the Ethics of Medicine, Oxford University Press, 2004, at p 56.

⁷ A Google search for Hippocratic Oath brings up a large number of examples.

⁸ Available at http://www.pbs.org/wgbh/nova/doctors/oath_modern.html (accessed on 6/5/2008).

⁹ Orr, R D, Pang, N, Pellegrino, E D, Siegler, M, ‘Use of the Hippocratic Oath: A Review of Twentieth Century Practice and a Content Analysis of Oaths Administered in Medical Schools in the U.S. and Canada in 1993’, The Journal of Clinical Ethics, 8 (Winter), 1997: 377–88.

¹⁰ See report, available at http://www.pbs.org/wgbh/nova/doctors/oath_today.html (accessed on 6/5/ 2008).

¹¹ Graham, D., ‘Revisiting Hippocrates: Does an Oath Really Matter?’, JAMA, 284(22), 13 December 2000: 2841–42.

¹² Beauchamp, T L, Childress, J F, Principles of Biomedical Ethics (6th edn), Oxford University Press, 2009, at p 7.

¹³ Ibid., at p 8.

devised by the profession, for the profession, and without the participation of patients or society.’ ¹⁴ In addition, in their view, ‘the principles guiding physician behaviour have rarely been justified on philosophical grounds’; ¹⁵ something which they firmly believe must be changed. The limitations of codes, which it should be noted still have some currency in modern medicine, ¹⁶ therefore serve to cast doubt on their authority.

The need for moral (and perhaps legal) authority, the limitations of the Hippocratic Oath and those that followed it, coupled with the increased professionalisation of medicine, demanded a different conceptualisation of the role of the clinician. No longer members of an inward looking profession, doctors instead became the source of a ‘good’ medical act, which has both personal and societal significance. While the commitments of medical practitioners moved beyond the professionally self-serving text of the classical Oath, and became more alert to and constrained by the well-being of patients, they nonetheless did not directly confront the question of what should be the balance of authority between physician and patient in a way that would satisfy the modern patient. If anything, having moved from the classical Hippocratic position, medicine was for many decades, if not centuries, firmly lodged in the tradition of what some call beneficence, but which all too often was more akin to paternalism. While beneficence is generally a characteristic of a ‘good’ medical act (and, I would argue can include respect for autonomous decisions), paternalism seldom is and we must be careful to distinguish the two.

From Hippocrates to paternalism

The tradition of paternalism has a long and remarkably robust history in medicine. Post-Hippocrates, wi...

Table of contents

• Autonomy, Consent and the Law
• Biomedical Law and Ethics Library
• Contents
• Introduction
• Chapter 1 From Hippocrates to paternalism to autonomy: the new hegemony
• Chapter 2 From autonomy to consent
• Chapter 3 Consent, autonomy and the law
• Chapter 4 Autonomy at the end of life
• Chapter 5 Autonomy and pregnancy
• Chapter 6 Autonomy and genetic information
• Chapter 7 Autonomy and organ transplantation
• Chapter 8 Conclusion
• Index