Autonomy versus Medical Paternalism

Historically, the concept of ‘doctor knows best’ has been widely held in regards to medical practices as a universal truth. Cultural changes over the course of time however have shifted this notion away from the paternalistic approach¹.

From Hippocratic times until the late 1960s, the duty of no harm from the doctor (non malfeasance) and assisting the patient (beneficence) was the only ethical concern in medicine².

By 20th century, autonomy gained massive power over all other standing medical doctrines, as autonomy is seemingly easily imposed. According to Brazier, the ancient trespass torts designed to protect bodily integrity are the bodyguard of autonomy, and only partially offer protection ‘thou shalt not trespass on my body’ enables me to say no. In today’s medical scene the rhetoric goes more like ‘my choices about my health care should be met in full. What I want should be delivered. A health service should service the consumer demands.³

The author of this essay will proceed to discuss one major power struggle in medical law; the debate between the patient autonomy, leading to a novel patient consumerism idea, versus medical practitioners’ paternalism. Initially, definitions of such concepts through recent case law will be provided. What will follow would be an evaluation from a bioethical and sociological perspective of the said concepts. In concluding, the author will offer recommendations via the use of journal articles, in an attempt to solve such ethical conflicts.

Medical law has four main legal concerns; autonomy, non malfeasance, beneficence and justice. They are prioritized according to their value by consent which is the mechanism through which they apply.⁴

As per Faden and Beauchamp autonomy is defined as ‘privacy, voluntariness, self-mastery, choosing freely, choosing one’s own moral position and accepting responsibility for one’s choices’.⁵ Autonomy is essentially the right of a person to decide what happens to their body, that they believe which is consistent with their personal values, including the right to refuse treatment.⁶ As per Schloendorff if a person is an adult of sound mind, he has a right to determine what happens to their body.⁷ In both the public and private health care sectors, it has been noted that patient autonomy is increasingly upheld over medical paternalism, usually disguised under the principle of beneficence, although attempts have been made to restrain this.⁸

Paternalism is when a patient allows a doctor to treat them without consent, hence trusting the physician that he knows what is best for him. Consent is the most significant thing for a doctor to attain, in order to proceed with the therapy; infringing this step will lead liability under civil, criminal, tort or even human rights law. The concept of paternalism can be characterized as utilitarian, as it has an ‘end justifies the means’ approach, whereby it is acceptable to infringe a person’s liberties like the right to religion, if it means the treatment is to the best interests of the patient.⁹ This is seen in NHS v VT, it was held that it was unethical for the doctor to cause a medically unreasonable harm in order to abide by the Muslim beliefs of the patient’s family.¹⁰

In practice, a patient is exercising their right to make autonomous choices on their wellbeing via consent.¹¹ A truly autonomous decision is thus made once the patient is fully aware of the repercussions of their choice.¹²

Consent can be either notably expressed or implied by the actions of the patient. As seen in Chatterson,¹³consent can be expressed by the signing of a consent form. Implied consent can be derived by an action such as the lifting of an arm as per O’Brien.¹⁴ Consent also must be valid, meaning it should not be obtained under duress. In Re T, a pregnant woman was held to have been influenced by her mother’s religion views which did not allow her to get a blood transfusion, which was to her best interests.¹⁵Additionally, a valid consent must also be informed, namely the patient must have all the appropriate information before him in order to decide what he wants.¹⁶As Lord Bingham commented in Chester: ‘in modern law, medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small but well- established risk of serious injury as a result of surgery’.¹⁷

There is a procedure in place where the free and informed consent is sought, when the all dangers and alternatives to treatment are mentioned. As per 1979 code of Medical Ethics, the patient’s wishes are enforced by his family in case his state does not allow it.¹⁸ Medical intervention is only supported in situations where the patient is unable to provide his consent due to his state, and when necessary for his survival^.Senanyako is a case on the refusal necessary for survival; the court held that the doctor never commits a fault if it is to save a patient’s life, even he is aware of the refusal.¹⁹ Another case is Re C whereby the patient’s refusal to treatment was accepted and it ultimately led to his death.²⁰

Also, Re C is a landmark case due to the establishing of the capacity test. The patient must understand the nature, the purpose and the effects of the treatment and be able to make a rational decision based on the information given.²¹ In Cheshire, even though the patient lacked the required capacity, the patient’s dignity and autonomy were preserved by opting for a treatment that was medically and ethically acceptable.²²

Below these considerations will be discussed in order to determine how the modern conflict of what a patient wants is compared to legislation for the common good.

In the case where, beneficence becomes equal to paternalism, then the idea of ‘doctor knows best’ comes in conflict with patients knowing what’s best for them.²³ Hence if the concept of beneficence is redefined to assist in patient’s autonomous decision-making then the gap will be lesser between the two sides.²⁴

Brazier believes it is high time the dethroning of what she terms as ‘the great god autonomy’ ²⁵happened, because, with rights, responsibilities arise at the same time.²⁶ As Draper and Sorrell put it, the doctor is nowadays a ‘captive helper’, to emphasize the restriction in the autonomy of the doctor.²⁷ It is thus important to maintain integrity in a medical consumerism area, which will end up diminishing completely the role of medical practitioners.²⁸

The evolution to bring about democracy in the processes, where the public has more to say in decisions, is supported by the patients’ rights movement in the newly evolved medical practice into the consumerism culture²⁹, as seen in recent court decisions in EU, USA and Australia, as well as the application by 20 countries of the Convention of Human Rights and Biomedicine.³⁰

Ever since the civil rights movement, there was an automatic increase in prioritising individual liberties and, consequently, autonomous decision making. This was also because medical tests back in the 1960s were being done without full disclosure of the dangers that underlying these. The concept of paternalism has also arisen at a time when medicine was praised for prolonging survival. Nowadays it is vague if this is still the case, as the quality of one’s life is valued at a higher price. A few social theorists have been involved in determining the exact nature of the autonomy of self-determining person. Kant believes that human beings are born rational and are influenced by their needs, while Mill was influenced by the medical ethics approach and hence evolved Kant’s definition to include where no pain is caused to any other human being.³¹

As per Coggon and Miola, the two approaches are directly opposing each other hence is in essence flawed.³² On the other hand, Smith holds that using the joined theories can be effective in battling paternalism, in the efforts to offer a modern approach in the medical sphere. This basically means a patient can refuse to receive a treatment and a doctor can refuse to provide a treatment deemed unnecessary according to his professional views. In order to defeat paternalism, Smith suggests that autonomy should be defined in a set of internal and external freedoms; whereby a person makes internally their own choices and carries them out in an external way.³³

Brazier believes that doctors should have a say when the patient’s demands are contrary to his own medical views, as seen in Re (on application of Burke).³⁴ The rights of self determination and autonomy of the patient do not mean the doctor should agree on it given his legal obligation to treat the patient.³⁵ On the other hand, it is not unusual for doctors to follow the recommendations from their professional bodies, like the General Medical Council’s or the British Medical Association, rather than the courts’ decisions.³⁶ Paris et al held that doctors almost always proceeded with treatment even if they considered the treatment useless.³⁷

Modern theorists and governments alike rely on viewing patients as consumers;³⁸ if the amount is agreed the physician will come through. This is why law has a responsibility to restrain doctors becoming a service provider. There are many disadvantages in the patient consumerism rise. As the healthcare provider turns into a service provider, the ethical values associated with medicine will also turn into consumer ethics such as free access, variety, adequate information provision, refunding and regulation. It is indeed a concern whether the idea of free market would work in healthcare, as it works in other areas of the society.³⁹ In taking into account the court decisions of many countries, the theory of bioethics arises to protest on the side of the autonomy principle with a notion to fight paternalism.⁴⁰ In California, the Supreme Court held⁴¹ that autonomy is achieved in four conditions, namely for life preserving, for preventing taking their own life, protect the integrity of doctors and the protection of vulnerable groups.⁴²

The application of said ideas can be viewed in public health care ethics.⁴³O’Neill described how making the use of resources to upgrade healthcare lawful undermines patient autonomy since, especially in the public sector, uniformity must be exercised. In distinguishing beneficence instead of patients’ right to oppose them might be viewed as endorsing communitarianism, and seeing the relationships between the physician and patient as covenants.⁴⁴ In a well-tuned public health care system like the NHS, which many countries would be jealous of, including the author’s home country, Cyprus, it is important relies to have good cooperation between doctors and patients. As Hume described it, it is vital for appreciation to be shown in the form of reciprocity from its citizens taking advantage of its benefits.⁴⁵

One way to end the tension caused between the conflicting theories is through the drafting advanced directives like living wills, whereby a patient can autonomously describe at which point his life is not worth preserving. Although the concept is vague by nature, it is good that at least a procedure will be in place. Another way is to set up local ethics committees which can take decide on behalf of parties.⁴⁶

Medical law is usually considered to take a black or white approach though its principles, whereby you have a choice of either following ethical guidelines or following practitioners’ recommendations. However perhaps if envisioning it as a unified ethical guideline with a unified goal to do the best for all patients and to make sure everybody has the dignified end to their lives they wished for.⁴⁷

Ideally the courts would only implement the law and patient autonomy would be guaranteed.⁴⁸ However our world is not ideal. The next step is then to achieve moral uniformity. It is impossible for everyone in communities to have common values; hence the way forward is for societies to hold an open dialogue. When the dialogue is performed with respect, it is possible for the community to be brought together for the greater good. Ideally, shared ethical values can become shared on some level or another. As a result everyone benefits from high quality healthcare system and the patient is autonomous and free.⁴⁹

Bibliography

Books:

Herring J.,‘Medical Law and Ethics (5th edition, Oxford 2014)

Mclean Sheila, ‘Autonomy, Consent and the Law’ (1st edition, Routledge 2010)

Samanta J., Medical Law (1^st edition, Palgrave Macmillan 2011)

Journal Articles:

Brazier Margaret, 2006 ‘ Do no harm – do patients have responsibilities too?’ Cambridge Law Journal 2006,65(2), 397-422

Childress et al., 2006 ‘ Transableism, disability and paternalism in public health ethics : taxonomies, identity disorders and persistent unexplained physical symptoms’ International Journal of Law in Context, 2006, 2(4),363-375

Coggon J., Miola J. 2011 ‘ Autonomy, liberty and medical decision-making’ Cambridge Law Journal 2011, 70 (3), 523-547

J.J.Paris, M.D Schreiber, M.Statter, R.Arensman and M. Seigler ‚Sounding Board‘ 1993 5 New England Journal of Medicine 329 at 354-357

O’Neill Onora, 2003 ‘Some Limits of Informed Consent.’’ Journal of Medical Ethics 2003, 29(4), 4-7

R. Heywood , J. Miola (2017)‘The changing face of pre-operative medical disclosure: placing the patient at the heart of the matter’ , Law Quarterly Review 2017, 133 (Apr.), 296

Smith David, 1997 ‘ The person behind the choices: anthropological assumptions in bioethics debate’ Medico-Legal Journal of Ireland, 1997, 3(2), 57-65

Errera Roger, 2002 ‘Case Comment : Senanyako , Re (Unreported, October 26 , 2001) CE(F)’, Public Law 2002, Aut, 579-580