Chapter 4 Guidance on answering selected questions from the book

Question

Is it correct to emphasize the ‘principle of autonomy’ given that, although great respect is paid to a patient’s refusal to consent to treatment, little legal weight attaches to the right to receive treatment that one desires?

Guidance

This question raises a key issue about autonomy.  As discussed in broad terms autonomy is the idea that you are able to make decisions about your life: you are author of your life.  You will want to explain autonomy at its basic level.

However, when applying this in relation to medical cases an important distinction emerges between a decision to have treatment and a decision to refuse treatment.  While both are decisions about how a person wants their life to proceed, the law protects the right to refuse treatment far more strongly than a right to demand treatment.  In short if a patient refuses treatment then, with a few exceptions, the doctor must respect that decision, as long as the patient has capacity.  However, if a patient demands treatment, it is open to a doctor to deny that request if that treatment is inappropriate, for example.  You can explore the different cases which develop that approach.

You could then consider whether there is a theoretical justification for that distinction.  In particular, whether or not the concept of bodily integrity is separate from autonomy.  The argument could be that in a case of patient refusal of treatment bodily integrity is involved if medical treatment is imposed on a patient.  By contrast, in a case where a patient requests treatment, but that is denied, that involves autonomy, but not bodily integrity.

You might also consider whether the distinction is rather based on public policy.  The NHS cannot afford to give every patient whatever treatment they request.   So there cannot be a right to demand treatment.  That said, where a patient refuses treatment that can be very expensive so you might debate whether expense alone can explain the position the law has taken.

Readings

Cave, E. (2017) ‘Protecting Patients From Their Bad Decisions: Rebalancing Rights,

Relationships, And Risk’, Medical Law Review 25: 527.

Coggon, J. and Miola, J. (2011) ‘Autonomy, liberty and medical decision-making’,

Cambridge Law Journal 70: 523.

Herring, J. and Wall, J. (2017) ‘The nature and significance of the right to bodily integrity’,

Cambridge Law Journal 76: 566