The Coherence of the Principle of Patient Autonomy in the English Medical Law: A Re-evaluation
| Author | Nahide Basri |
| Position | LLM Candidate at LSE, specialising in Human Rights Law; LLB graduate (LSE) '19 |
| Pages | 31-48 |
2020 LSE LAW REVIEW
31
The Coherence of the Principle of Patient Autonomy in
the English Medical Law: A Re-evaluation
Nahide Basri*
ABSTRACT
By comparing and contrasting four specific areas within English medical law – informed consent,
mental capacity of adults, mental capacity of children, and mental health – this essay observes a
fundamental shift from medical paternalism towards patient autonomy in the UK. The general
position is that a competent adult with capacity has an almost absolute right to informedly consent
to or refuse medical treatment, while those not qualifying as such are assisted so far as practicable
in enabling them to make choices concerning their medical treatment in the most autonomous way
possible. However, this commitment to patient autonomy lacks coherence. This essay identifies
three main reasons for this. Firstly, a degree of unjustified paternalism remains even with regard
to competent adults – especially in the case of mentally ill patients. Secondly, by viewing autonomy
in predominantly individualistic terms, the law disregards how patients’ interdependences and
relationships may be constitutive – not destructive – of their autonomy. Thus, it unfairly subjects
those incapable of an individualised sense of independence to the ‘best interests’ test. Thirdly, the
‘best interests’ test is ill-equipped to uphold such pati ents’ autonomy. This essay argues that re-
envisioning autonomy in relational terms is a vital starting point to address the current
incoherencies.
* LLM Candidate at LSE, specialising in Human Rights Law; LLB graduate (LSE) ‘19.
The Coherence of the Principle of Patient Autonomy Vol. 5
32
INTRODUCTION
The rise of bioethics, challenging the ‘doctor knows best’ foundations of
conventional medical ethics, is reflective of a fundamental shift in medical law
from medical paternalism towards patient autonomy.
1
For the purpose of clarity,
this essay defines autonomy as the ability of the patient to exercise self-
determination with regards to their treatment, comprising three aspects: (1)
agency: setting their own goals in life; (2) independence: acting free from the
coercive influence of others; and (3) rationality: reasoning in accordance to one’ s
own values and desires.
2
Comparing and contrasting four areas within English
medical law – informed consent, mental capacity of adults, mental capacity of
children, and mental health – this essay identifies a clear rise in recognition of
patient autonomy. Informed consent law relates to the ability of a competent
patient to make autonomous decisions regarding their own treatments. In
contrast, mental capacity law of adults and children sets a thr eshold to determine
the level of competency and understanding patients need to display before being
allowed to make such decisions. Mental health law deals with similar issues but
does so specifically with mentally ill patients in mind. A comparative analysis of
these four areas in the English medical law shows that the general position is that
a competent adult with capacity has an almost absolute right to informedly
consent to or refuse medical treatment. T, while those that do not qualifying as
such – whom we will refer to as ‘the vulnerable’ – are assisted so far as practicable
in enabling them to make choices concerning their medical treatment in the most
autonomous way possible.
Unfortunately, a close analysis demonstrates that this s hift towards patient
autonomy lacks coherence. Firstly, even with regard to competent adults, a degree
of unjustified paternalism remains – blatantly so in the case of the mentally ill.
Secondly, protection of patient autonomy is envisaged predominantly in
individualistic terms. This disregards the ways in which patients’ interdependences
and relationships may be constitutive, not destructive, of their independence, and
1
Helga Kuhse and Peter Singer, A Co mpanion to Bioethics (first published 1998, Blackwell
2013).
2
Genevra Richardson, ‘Autonomy, Guardianship and Mental Disorder: One Problem,
Two Solutions’ [2002] MLR 65, 5.
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