Anorexia, Welfare, and the Varieties of Autonomy: Judicial Rhetoric and the Law in Practice
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anorexia nervosa, autonomy, cognitive capacity, euthanasia, judicial rhetoric, treatment refusal, virtue, voluntary capacity
In English medical law, it is something of an axiom that adult competent patients have an absolute right to refuse all and any medical treatment, including potentially life-saving and life-sustaining treatment. This legal proposition, which is embedded in the doctrine of consent, has for the last few decades been regarded as the expression of the philosophical principle of personal autonomy and ethical right of self-determination. The Western ethical and legal traditions places heavy emphasis on notions of personal sovereignty reflected in the strong rhetorical entrenchment of patient autonomy in judicial determinations of treatment refusal cases. In a spate of legal cases in the 1980s and 1990s judicial rhetoric has underscored the normative strength of the principle of respect for competent choices.
Giordano’s Paper
In her clear and thought-provoking paper, Giordano (2010) argues that this settled principle of medical ethics and law should be abridged in the case of cognitively competent anorexics refusing life-sustaining treatment. This qualification of the putatively settled ethical and legal position is justified on two grounds: first, on the ground that the condition anorexia nervosa is, except in the most extreme circumstances, entirely reversible; and, second, that the families of anorexics are involved in, and affected by, the anorexic’s predicament in profound and particular ways. Accordingly, Giordano argues, implicitly, that the law, if it is to be based on sound medical ethics, much take into account the singular clinical features of anorexia and the relational context within which the sufferer’s welfare, and indeed the welfare of the family, or significant others, must be taken into account. Indeed, the implications of her argument go further: the family or significant others have a moral entitlement to be involved in decisions relating to the welfare of the sufferer. More than that, the welfare of the family is itself a morally significant factor to weigh into the decision-making balance.
Giordano also points out that in certain end-of- life contexts the principle of autonomy and associated right of self-determination are already [End Page 159] qualified in a number of important respects. The autonomous expression of a death wish is not on its own a good reason for honoring it. In a number of European jurisdictions that sanction medical killing and/or physician-assisted suicide, a person’s desire for an expedited death is qualified by the requirements either for evidence of that person’s condition being terminal and/or the presence of unbearable or intractable suffering. As a matter of law and public policy, therefore, the importance of autonomy as a cultural and ethical value is weighed into the balance with other important values, in particular the value of the sanctity of life. Moreover, where further treatment is futile, and suffering irremediable, doubts about a person’s capacity for autonomous decision making does not automatically rule out on ethical grounds the rightness of considering a person’s request to die.
Thus, Giordano argues that there is a place in good medical ethics and law for what is tantamount to a kind of ‘benign paternalism’ that weakens the normative strength of the autonomy principle and correspondingly strengthens the welfare principle by taking into account as moral factors both the welfare of the sufferer and the welfare of those who are most closely affected by the sufferer’s behavior.
Judicial Rhetoric and the Law in Practice
Whether strong judicial rhetoric entrenching the autonomy principle in medical law adequately accounts for the way the judiciary apply the law in practice, especially in treatment refusal and end-of-life cases, is questionable. The disjunction between the judicial rhetoric of autonomy and the judicial use of the autonomy principle in practice was arguably evident throughout the 1990s in several legal cases involving nonconsensual obstetric interventions on otherwise cognitively competent pregnant women. According to many legal commentators, these women were clearly competent, at least according to the established common law capacity criteria. Nevertheless, the courts justified nonconsensual treatment by resorting to the fictions of legal incompetence...
