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A fundamental debate in the field of medical ethics and English medical law has been finding the right balance between the principles of medical paternalism and patient autonomy. While there are commonly used definitions of medical paternalism, such as “treating of others in their best interests, regardless of their own view of what their best interests are”, as well as a wider societal consensus that it generally refers to the idea of ‘doctor knows best’, there is less agreement on the definitions of patient autonomy. There are, however, a common aspect between current definitions all define autonomy with respect to distinct characteristics, such as “being free from external influence, able to decide given sufficient information, and possessed of the capacity to reason”. Despite the lack of a clear definition, it has not hindered the societal move to recognise the primacy of autonomy over paternalism, as recognised by Steyn LJ in the landmark case of Chester v Afshar, where he noted that “In modern law medical paternalism no longer rules”. However, this essay posits that current arguments around the subject are only valid when simply considering autonomy as the combination of discrete elements, which despite raising undoubtedly valid arguments, is fundamentally based on a limited view of autonomy that can be expanded. This expansion relies on the interaction between an internal perspective regarding the individual’s ability to make decisions, and an external perspective concerning the degree that the individual can exercise that decision. Analysing medical law trends under this expanded two-part model shows that the current law has only focused on promoting the internal perspective, which implies that the pendulum has not only not ‘swung too far’, but arguably has not swung far enough in promoting an expanded, holistic and complete view of patient autonomy.
Contemporary debates around the issues between paternalism and autonomy have rested on modelling autonomy as the combination and interactions between discrete elements or identifiable characteristics, such as in the definition proposed by Smith et al mentioned earlier. While contemporary debates based around the element-based model of autonomy have resulted in valid arguments that carry significant weight in the current discourse around paternalism and autonomy, as propounded by influential academics like Onora O’Neill, academics such as John Coggan have advanced an argument that the debate may have been too narrow in focus, and as a result has failed to promote a holistic model of patient autonomy that truly respects the underlying principles behind autonomy, such as human rights – for example Art 8 of the European Convention on Human Rights which emphasises the right to respect private and family life. A guiding principle for drawing a new model of autonomy that can possibly address such critique relies on the distinction found in Isaiah Berlin’s concepts of two forms of autonomy: a ‘positive’ form which concerns a desire to “be moved by reasons, by conscious purposes, which are my own, not by causes which affect me, as it were, from outside”, and a ‘negative’ form which concerns “the degree to which no man or body of men interferes with my activity”. Extrapolating these two forms of autonomy into current views of patient autonomy, the ‘positive’ form of autonomy can be seen as a broad concept that is closely related to the current characteristic-based conceptions of patient autonomy, with clear parallels to the characteristic of reaching decisions “free of external influences”. Meanwhile, the ‘negative’ form of autonomy would add a new aspect to current views of patient autonomy – the degree to which patients are able to exercise their decisions, without restrictions placed by medical guidelines or laws. As Coggan argues, the importance of this new aspect arises from the fact that “to respect the value of autonomous agents, we must permit people to act freely, not merely to reason freely”. It should be apparent that in a vacuum, simply being able to make a decision about one’s body and health does not by itself translate into any outcome, as a decision is simply a justification to undertake a particular medical action. Therefore, without the ability to translate decisions to corresponding real-world medical actions, it cannot be said that the patient’s holistic autonomy, as a combination of the adapted ‘positive’ and ‘negative’ forms of autonomy, were meaningfully respected. As a natural result, should English medical law be deemed to have failed to create holistic advances under this broader, extended definition of autonomy, it can only reasonably be argued that the ‘pendulum’ has failed to swing too far, instead there are more steps needed to ensure the law moves closer towards achieving the right balance.
The disconnect between the two forms of autonomy, which Coggan rephrased as “autonomy relates to free will… and liberty relates to freedom to act without the interference of a third party”, where ‘autonomy’ referring to the internal perspective and ‘liberty’ referring to the external perspective, became apparent in the case of Pretty v UK. In this case, the ‘autonomy’ aspect was clearly present as Mrs. Pretty was by all measures mentally competent to reach the decision that she wanted to end her life with what she considered was dignity as a result of her painful and tragic battle against motor neurone disease. However, she lacked the ‘liberty’ to translate her decision into medical action as she was both unable to commit suicide herself due to not having control of her muscles, while the law also prevented her husband from assisting her suicide as that was illegal. This is not to comment on the merits of the decision or that that both concepts must be given equal weight, but merely serves as an illustration of how the two concepts can come into conflict with another, thus forcing the courts and the law to promote only the that they deem more important to uphold in their relevant social environments.
Through this lens, the developments of English medical law have shown that it has predominantly chosen to uphold ‘autonomy’ over ‘liberty’, actively and continually promoting discussion on methods of identifying and measuring when the decisions of patients are legally recognised, with very little discussion engaging with the premise of how to also promote legally recognised decisions being exercised and translated into medical actions. This view is emphasised strongly through judicial judgments such as Lord Donaldson’s well-known dicta in Re T:
“An adult patient who…suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment… This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent.”
However, taking such an uncompromising position on the importance of autonomy creates the risk that English medical law “reflects a view that sees autonomy as isolational independence. However… autonomy is meaningless in the absence of a social context”. Such a view would suffer the established issues of viewing patient autonomy simply as a vacuum within the confines of the internal perspective of the extended model, and would not promote a holistic and balanced approach that tackles not just individual decisions and mental capacities, but also the wider ‘social context’ of any decisions applications and ramifications in the real world. The current leading laws, such as the Mental Capacity Act 2005, have continued this trend by continuing to promote and a view of patient autonomy defined purely by the internal perspective of how patients reach a decision and whether their decision is legally recognised, as shown by section 4 of the Act referencing various factors which are very personal (such as “the person’s past and present wishes and feelings”) but do not engage with how the law should aim to strike a balance of giving patients the right to translate their decisions into medical actions that do not infringe upon the rights of others, as shown in cases like Pretty. Similarly, Montgomery also helped develop patient autonomy by promoting informational symmetry through considering the patient’s internal perspective, relying on phrases such as the “reasonable person in the patient’s position”. While it aimed to tackle a prevalent and legitimate issue regarding the standards for disseminating information, it did not touch on the external perspective of whether the information needs to be understood by the patient. This creates the problem that Maclean described as a system that “prejudices the vulnerable and less well-educated without providing any significant additional protection for the more capable”. However, attempts to actively engage in the external perspective of patient autonomy is made harder by institutional factors inherent in the English conception of law, since discussions around ‘liberty’ requires legitimate limits to ensure that one’s decisions does not negatively influence the ability for others to decide and act within their rights, emphasising the importance of the ‘social context’, with Coggan going on to add that ‘liberty’ would “work from a presumption that people should be free to act autonomously provided they do not breach well grounded external laws”. Nonetheless, the overall focus on ‘autonomy’, regardless of it merely being a part of a wider, extended view of patient autonomy propounded by this essay, has still tangibly resulted in English medical law promoting the principle of patient autonomy over medical paternalism. However, under the proposed extended model of patient autonomy, the current law has not developed to the extent where one can convincingly argue that patient autonomy has been promoted sufficiently or holistically.
In concluding, it is important to first emphasise that the thesis presented in this essay did not intend to detract from the strength or validity of any established arguments on the debates and issues surrounding medical paternalism and patient autonomy in any way. Instead, it aimed to offer a justification for expanding our currently accepted definitions of autonomy from beyond a mere focus on an internal perspective of the individual’s capability to reach decisions, to include a new external perspective of the individual’s ability to translate decisions to corresponding real-world medical actions. Under this expanded model of autonomy, of which existing definitions of patient autonomy forms one part of a bigger whole, it becomes apparent that English medical law has indeed shifted towards autonomy, but only in a limited sense that does not truly respect the wider values of an “autonomous agent”, i.e. merely focusing on the internal perspective of decision-making. Without English medical law engaging in more meaningful and nuanced discussions on the external perspective of translating decisions into actions, it cannot be argued that the pendulum has ‘swung too far’ towards true patient autonomy. Instead, it is only reasonable to conclude that the pendulum has swung in the right direction, but the magnitude of the swing has, to date, been insufficient in promoting and ensuring a holistic and complete model of patient autonomy that fully respects the underlying values behind autonomy.
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