Autonomy, Guardianship and Mental Disorder: One Problem, Two Solutions
| Published date | 01 September 2002 |
| Date | 01 September 2002 |
| Author | Genevra Richardson |
| DOI | http://doi.org/10.1111/1468-2230.00404 |
Autonomy, Guardianship and Mental Disorder: One
Problem, Two Solutions
Genevra Richardson*
The law in England and Wales governing both the provision of medical care in the
case of adults with incapacity and the provision of care and treatment for mental
disorder presents serious problems for the principle of patient autonomy. The
adult with incapacity has no competence either to consent to or to refuse medical
treatment but the law provides no statutory structure for substitute decision
making on that adult’s behalf. On the other hand the law does allow a person with
mental disorder to be treated for that disorder despite his or her competent
refusal. The nature of these inconsistencies is considered and the implications
which flow from the singling out of mental disorder are examined with reference
to experience in two Australian jurisdictions. The current proposals for reform of
the Mental Health Act are then considered in the light of the conclusions drawn.
Introduction
Mental disorder is common. Most of us will experience some form of mental
disorder either in ourselves or in those close to us at some stage in our lives. For
some that disorder will lead to a reduction in mental competence and to an inability
to make decisions about health care and treatment, for others decision-making
competence will be unimpaired. In the first event we might expect the law to
provide for substitute decision-making in the affected person’s best interests, while
in the second we might assume that the person’s competent decisions would be
respected. Legal reality in England and Wales, however, fails to match these
simple expectations and assumptions. The provision of health care and treatment
for incompetent adults in general is left to the uncertainties of the common law:
there is no formal structure for substitute decision-making. Special statutory
provision is available only for the care and treatment of mental, not physical,
disorder, and here special principles apply which permit treatment to be given
against the competent wishes of the patient. This paper tries to draw out some of
the implications of this confused approach to adult incapacity in general and
mental disorder in particular, to learn from practice elsewhere and to consider the
current programme for reform. But first it is necessary to examine some underlying
concepts and their relationship to mental disorder.
ßThe Modern Law Review Limited 2002 (MLR 65:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.702
*Queen Mary, University of London. I should like to thank all those in Victoria and New South Wales
who gave so generously of their time, in particular Terry Carney and Spencer Zifcak without whose help I
would have been lost. I would also like to thank Jill Peay for her wise and thoughtful comments on an
earlier draft of this article.
The Principle of Autonomy
Respect for autonomy is now well established as one of the fundamental principles
of bioethics.1Traditionally, autonomy relates to the capacity of individuals to
pursue their right to self-determination and is said to require three essential
elements: agency, independence and rationality.2Agency implies an awareness of
oneself and one’s goals. Independence in this context connotes an absence of
controlling influences which could force the individual to act against his or her
wishes, and rationality refers to the ability to reflect critically on one’s own desires
and beliefs. Understood in this sense, autonomy is often regarded as lying in
opposition to medical paternalism, and thus in opposition to the principle of
beneficence3from which paternalism flows. Indeed for traditional bioethics this
potential conflict between autonomy and beneficence poses a central dilemma and
requires a balance to be struck between the patient’s right to choose, and thus to
refuse, and the doctor’s desire to cure.
Although the particular value of autonomy within a modern pluralist society is
still widely recognised,4the traditional, highly individualistic, interpretation is now
being challenged in favour of a more contextual and relational approach. Some
commentators argue that autonomy should place more emphasis on the intrinsic
value of persons rather than on the free choices theymake.5Others claim that
autonomy should not be seen in the primarily negative terms of non-interference
but as something to be nurtured and aspired to, medical intervention should be
designed to help attain and enhance autonomy not to threaten it. Autonomy in this
sense does not adhere to the individual in a vacuum but is made possible by our
social relationships.6
Whichever approach is preferred, some notion of autonomy which emphasises
the principle of respect for individuals and the values they pursue and cherish is
central to the ethical conduct of medicine. Unfortunately, such a simple principle
can give rise to considerable difficulties when applied to certain areas of medicine,
including most particularly the treatment and care of mental disorder.
Competence
It is in relation to the individual’s right to consent to or to refuse medical treatment
that the principle of autonomy plays possibly its most significant role in practice.
Respect for autonomy demands respect for the treatment wishes of the individual:
the individual must have the right to decide whether to accept or to refuse the
treatment offered. However, not all people are competent to make such decisions
all the time and, in UK law at least, only competent decisions demand our respect
1T. Beauchamp and J. Childress, Principles of Biomedical Ethics (New York: Oxford University Press,
2001).
2B. Miller, ‘Autonomy’ in L. Becker and C. Becker, Encyclopaedia of Ethics (New York: Garland
Publishing, 1992) 215–220.
3See the definition of beneficence in n 1 above. For further discussion see S. Wear, Informed Consent,
Patient Autonomy and Clinician Beneficence within Health Care (Washington DC: Georgetown
University Press, 1998)
4E. Pellegrino and D. Thomasma, The Virtues in Medical Practice (New York: Oxford University
Press, 1993).
5J. Bergsma and D. Thomasma, Autonomy and Clinical Medicine (Dordrecht: Kluwer Academic
Publishing, 2000).
6M. Verkerk, ‘A Care Perspective on Coercion and Autonomy’ (1999) 13 Bioethics 358.
September 2002]Autonomy, Guardianship and Mental Disorder
ßThe Modern Law Review Limited 2002703
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