ABSTRACT
Law is essentially a set of rules; courts are not necessarily the ideal place for an ethical battleground. This is not to say that law never engages with complex and divisive ethical issues – obviously it often has to – but rather that it needs an appropriate framework and workable guidelines in order to function with internal logic and consistency. This generally means that courts operate on the basis of adherence to principle and/or precedent. Since courts are arranged in hierarchies, previous decisions can carry considerable – sometimes definitive – weight. When confronted with new situations, judges will either try to identify precedent to guide them or, as is particularly true in Scotland whose law owes much to its Roman Law heritage, will apply long established principles to novel problems. In terms of consent to treatment, however, there is – in the case of competent adults at least1 – no difference between the various United Kingdom jurisdictions. Each starts with the presumption that the competent adult has a right to make his or her own healthcare decisions, and even to reject optimal medical advice. This, as we have seen, is said both to derive from and to reflect the law’s declared prioritisation of autonomy. It has emerged from our previous discussion, however, that while it seems
relatively easy to identify the autonomous person, it is much less easy to decide whether or not a decision is truly autonomous. Allmark, for example, says that while being autonomous is a sine qua non of an autonomous act, on the other hand ‘it is not always the case that an act performed by such an agent is autonomous.’2 The ability to make an autonomous choice, however, will in large part hinge on fulfilling the criteria identified in the previous chapter – such as information disclosure and voluntariness.3 Without the
luxury of space and time for academic debate, the courts must nonetheless reach a decision that at least prima facie satisfies the law’s commitment to respect for autonomy. This the law does through the requirement to obtain consent before medical treatment can be provided. Either unaware of, or perhaps functionally unable to address, the concerns already canvassed about the real value of consent in respecting truly autonomous choice, courts have over the years fashioned their own position which will be considered in the remainder of this chapter. The primary aim of this discussion is to work out what criteria are used by
the law to identify the validity of consent itself, and – more importantly – to evaluate whether or not the concept of consent as developed in law bears any relationship to the concept of autonomy. However, of course, it must be recognised immediately that there could well be some divergence between the goal(s) served on the one hand by the concept of respecting autonomy and on the other by those of the judiciary in dispensing ‘justice’ using the law of consent to treatment. Moreover, from the perspective of the aggrieved patient, while disrespecting his or her autonomy is an important issue, there may be additional purposes served by raising an action based on an allegedly flawed consent – for example, obtaining compensation, naming and shaming the doctor, receiving an apology or simply trying to ensure that lessons are learned for the future. Since these are also legitimate aims, it is obviously important that the action available to the aggrieved patient is appropriate to meeting their interests or needs. As different legal actions require different kinds of proof, it is worth briefly considering this question as it can play a significant part in shaping – even circumscribing – the law’s ability to protect the autonomy of the patient.
