Journal of Medical Ethics 45 (1):3-7 (2019)

Over the last quarter of a century, English medical law has taken an increasingly firm stand against medical paternalism. This is exemplified by cases such as Bolitho v City and Hackney Health Authority, Chester v Afshar, and Montgomery v Lanarkshire Health Board. In relation to decision-making on behalf of incapacitous adults, the actuating principle of the Mental Capacity Act 2005 is respect for patient autonomy. The only lawful acts in relation to an incapacitous person are acts which are in the best interests of that person. The 2005 Act requires a holistic assessment of best interests. Best interests are wider than ‘medical best interests’. The 2018 judgment of the Supreme Court in An NHS Trust v Y from patients in prolonged disorders of consciousness ) risks reviving medical paternalism. The judgment, in its uncritical endorsement of guidelines from various medical organisations, may lend inappropriate authority to medical judgments of best interests and silence or render impotent non-medical contributions to the debate about best interests—so frustrating the 2005 Act. To minimise these dangers, a system of meditation should be instituted whenever it is proposed to withdraw life-sustaining CANH from patients with PDOC, and there needs to be a guarantee of access to the courts for families, carers and others who wish to challenge medical conclusions about withdrawal. This would entail proper public funding for such challenges.
Keywords No keywords specified (fix it)
Categories (categorize this paper)
DOI 10.1136/medethics-2018-105098
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

PhilArchive copy

Upload a copy of this paper     Check publisher's policy     Papers currently archived: 53,719
Through your library

References found in this work BETA

No references found.

Add more references

Citations of this work BETA

Grounded Ethical Analysis.John McMillan - 2019 - Journal of Medical Ethics 45 (1):1-2.
Why the BMA Guidance on CANH is Dangerous.Rosemarie Anthony-Pillai - 2019 - Journal of Medical Ethics 45 (10):690-690.

Add more citations

Similar books and articles

A Trust-Based Argument Against Paternalism.Simon R. Clarke - 2013 - In Pekka Makela & Cynthia Townley (eds.), Trust: Analytic and Applied Persectives. Amsterdam, Netherlands: Rodopi. pp. 53-75.
Medical Paternalism in House M.D.M. R. Wicclair - 2008 - Medical Humanities 34 (2):93-99.
Refusal Rights, Law and Medical Paternalism in Turkey.Jessica Flanigan - 2013 - Journal of Medical Ethics 39 (10):636-637.
The Limits of Medical Paternalism.Paula Boddington & Heta Hayry - 1993 - Philosophical Quarterly 43 (171):263.
Mandatory Disclosure and Medical Paternalism.Emma Bullock - 2016 - Ethical Theory and Moral Practice 19 (2):409-424.
Using Informed Consent to Save Trust.Nir Eyal - 2014 - Journal of Medical Ethics 40 (7):437-444.
Is There a Moral Duty for Doctors to Trust Patients?W. A. Rogers - 2002 - Journal of Medical Ethics 28 (2):77-80.
Paternalism, Consent, and the Use of Experimental Drugs in the Military.J. Wolfendale & S. Clarke - 2008 - Journal of Medicine and Philosophy 33 (4):337-355.
Epistemic Trust, Epistemic Responsibility, and Medical Practice.A. P. Schwab - 2008 - Journal of Medicine and Philosophy 33 (4):302-320.
Trust but Verify.Sissela Bok - 2014 - Journal of Medical Ethics 40 (7):446-446.


Added to PP index

Total views
31 ( #319,686 of 2,349,700 )

Recent downloads (6 months)
5 ( #148,473 of 2,349,700 )

How can I increase my downloads?


My notes