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

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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.

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Notes

  1. Respect for autonomy is one of the “four principles”: see [6]. On the applicability and utility of the “four principles” in UK medical practice, see [20, 21]. On the history of autonomy, see [56].

  2. Consider, for example, the statement of Ward LJ in [48, p. 726]: “This court is a court of law, not of morals, and our task has been to find, and our duty is then to apply the relevant principles of law.” This statement may be met with some due cynicism. Preferable is the statement of Browne-Wilkinson L in [2, pp. 879–880]: “[I]f the judges seek to develop new law to regulate the new circumstances, the law so laid down will of necessity reflect judges’ views on the underlying ethical questions, questions on which there is a legitimate division of opinion.”

  3. See paragraphs 81–83, 94. The paper referred to is Kim Atkins [4].

  4. A right under Article 8 of the European Convention on Human Rights, for example, is not absolute. Derogation is made possible by Article 8(2). The common law right to exercise autonomy through a competent refusal of treatment, however, is absolute.

  5. Consider, e.g., Hoffmann LJ in [2, p. 826]; Lord Phillips MR in [43] at paragraph 30. Although contrast the approach of Dame Elizabeth Butler-Sloss: in [39, p. 361] she states “[A]rticle 8 protects the right to personal autonomy, otherwise described as the right to bodily integrity”, thus holding that a permanently unconscious patient is still autonomous. In some cases, there is no reference to ‘autonomy’ at all, and instead matters relating to ‘self-determination’ are considered; for example, [58]; in other cases autonomy is not described or explained, but is merely asserted; for example, [49].

  6. This raises some interesting questions: What damages would be appropriate for a breach of autonomy? Is a breach of autonomy all-or-nothing, or is it relative? Does the potential physical effect of a breach of autonomy affect the severity of the breach of autonomy?

  7. In the case of In Re MB [30], Butler-Sloss LJ endorsed Thorpe J’s approach. She at one point approves just the first and third stages, but elsewhere in the judgment all three aspects of Thorpe J’s test are endorsed.

  8. The exception to this rule is found in section 63 of the Mental Health Act 1983, which denies patients the right to refuse consent to medical treatment given for the mental disorder from which they are suffering, unless it is treatment falling within section 57 or 58.

  9. Against the odds, in Re C, the patient did not actually die as a result of his refusal.

  10. The decision in this case was overruled, but much of the law stated in the lengthy judgment is good. The statement in the paragraph cited here may safely be taken to reflect the law’s attitude.

  11. Mental Capacity Act 2005, sections 24–26.

  12. Although he does not use the terms that I do to describe the conceptions of autonomy, many of the ideas here can be found in Richard Lindley Autonomy [34].

  13. My thanks to Professor Søren Holm for pointing out this distinction to me.

  14. It might be argued that acting in accordance with best desire autonomy is better described as acting with ‘soft paternalism’—i.e., self-inflicted paternalism—rather than autonomy: [3].

  15. See also [34, chapter 5].

  16. Contrast Joseph Raz’s account [47, pp. 412–413]. According to this, the harm principle includes protecting a person from harming himself as well as others.

  17. For which, see [61, chapters 6 and 19; 22, chapters 13 and 16].

  18. Consider the paper by Julian Savulescu on conscientious objection [54], but also note the online rapid responses, largely critical of Savulescu’s argument: http://www.bmj.bmjjournals.com/cgi/content/full/332/7536/294?maxtoshow=&HITS=10&hits=10&RESULTFORMAT=&author1=savulescu&andorexactfulltext=and&searchid=1&FIRSTINDEX=0&sortspec=relevance&resourcetype=HWCIT (accessed 28/03/06).

  19. Arguably it is not: if I want to kill someone but I want not to go to jail more, then my current desire autonomy might not be thwarted; I may just be upset by the necessity I perceive in my choice.

  20. See, for example, [4, 7, 12, 14, 27, 35, 40, 62pp. 51–67].

  21. These examples are taken from [3].

  22. It is important not to misunderstand ‘irrationality’. The refusal, for example, of a Jehovah’s Witness to receive a blood transfusion is not irrational given the perceived alternative. Of course, it is arguable that the belief itself is irrational.

  23. This may apply even to liberal theorists. Consider, for example, Ronald Dworkin’s discussion on ‘critical interests’: [13, pp. 192–193].

  24. Butler-Sloss LJ: “A mentally competent patient has an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death” [30, p. 432].

  25. See supra, n. 8.

  26. This was confirmed in St George’s Healthcare NHS Trust v S [63]: a pregnant woman may refuse her consent for any or no reason. Of course, capacity may well be questioned, and a lack of capacity may still result in a caesarean section being allowed: In Bolton Hospitals NHS Trust v O [8], it was found that the irrationality of the patient’s actions marked a lack of competence.

  27. The risk that judicial care (or other motives) might lead to unacceptable breaches of autonomy is well demonstrated by the ‘caesarean cases’. For consideration of the issues in this area, see [57].

  28. The decision was actually based on the Mental Health Act 1983, section 63, but the judge went on to consider the applicability of the law were the force-feeding not to be considered as treatment. Unlike B v. Croydon HA [5] the judge also found a lack of capacity in Brady’s case. See supra, n. 8.

  29. Dame Elizabeth Butler-Sloss rejected the conspiracy theory claims without much explicit consideration. This was possibly in part to avoid being bound by the point in Re C that a refusal based on reasoning linked to the patient’s disorder would have meant that capacity would have been diminished. See supra, n. 8.

  30. Linked both to conceptions of justice and the protection of prisoners’ physical health.

  31. As was noted in a commentary on the case, “It must have been difficult for Maurice Kay J to put from his mind the fact that Brady is a perverted and sadistic child torturer and killer, and one of the most hated men in Britain.” [15, p. 255].

  32. For judicial expression of this right, see note 24.

  33. In Re C and Robb it seems more appropriate to consider the attitude towards the patients as being one of indifference rather than one seeking punishment.

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Acknowledgements

Author owes enormous thanks to Professor Søren Holm for his comments on drafts of this paper, and to the generosity of Cardiff Law School for funding this research. This paper was chosen as winner of the 2006 Mark S. Ehrenreich Prize for Healthcare Ethics Research, awarded at the 8th World Congress of Bioethics by the Pacific Center for Health Policy and Ethics, University of Southern California.

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    John Coggon

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Coggon, J. Varied and Principled Understandings of Autonomy in English Law: Justifiable Inconsistency or Blinkered Moralism?. Health Care Anal 15, 235–255 (2007). https://doi.org/10.1007/s10728-007-0062-8

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