ABSTRACT
The major consequence of being respected as autonomous is that it implies the capacity or liberty to make decisions, free from external control and in the expectation that they will be accepted as valid and binding on others. It also means that nobody has the authority to interfere with our bodies and minds without our agreement or consent (save in very limited circumstances where seeking consent is not feasible). As we will see in what follows, the drive to enhance patient engagement in, and authority over, their own healthcare decisions led to the development of requirements that consent be not just assumed, but real. However, as I will argue, the law on consent may do little to ensure that autonomous people are able to make autonomous decisions, and to that extent it arguably plays a limited role in actually protecting autonomy despite its perceived importance in modern biomedical ethics and law. What the law presumably intends is that a truly autonomous decision will be respected, but it is not clear how, if at all, it can recognise such a decision, nor is it obvious that it imposes an obligation on physicians to ensure that making one is feasible. I start with a disclaimer. I will not use the language of ‘informed’ consent
unless that terminology appears in other authors’ writing. The reasons for this have been explained more fully elsewhere,1 but are broadly concerned with the fact that ‘informed’ consent is a doctrine developed in US jurisprudence and was, according to Robertson,2 specifically designed to expand the liability of doctors. Although, as we will see, some judges and commentators in the United Kingdom use this language, arguably they mean something different by it and UK courts do not have exactly the same understanding of the terminology as their US counterparts. It is, however, impossible entirely to avoid the language since it is either used with jurisprudential exactitude (as in US cases and commentaries) or as a loose descriptor (as is usually the case in the United Kingdom). Whatever the
language used, however, the concern of the law on consent is to ensure that people have made knowledgeable choices about healthcare and to ensure that these are respected. Having considered rules that apply to the law in respect of consent, I will
then explore the extent to which (if at all) there is an identifiable relationship between consent and autonomy, however the latter is understood. This is an important question, since as Faden and Beauchamp say:
It is always an open question whether an autonomous person with the capacity to give an informed consent actually has, in any specific instance, given an informed consent, in the sense of making an autonomous choice to authorize or refuse an intervention.3
