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Autonomy, Consent and the LawReview - Autonomy, Consent and the Law
by Sheila A.M. McLean
Routledge, 2009
Review by Kyoko Wada, MD
Sep 7th 2010 (Volume 14, Issue 36)

In Western countries, respect for patient autonomy is recognized as one of the most dominant ethical principles in healthcare ethics, and obtaining informed consent from the patient for healthcare treatment is understood as standard practice. Accordingly, we assume that the laws of these countries unequivocally support self-determination in healthcare. Sheila McLean has done a remarkable work in challenging what most of us have presumed to be the legal reality. In the introduction, she claims that while consent is believed to be the legal equivalent of autonomy, the relationship between the ethical concept of autonomy and the legal concept of consent is "deceptively nuanced and complex".

In the first three chapters, McLean elaborates on the ethical concept of autonomy and how the consent law relates to it. She begins by indicating that there is no consensus about the exact meaning of autonomy, which ranges from the individualistic account to the relational account. She, however, indicates that these two accounts of autonomy are not distinctively different because relational autonomy surely endorses the importance of self-determination, but restricts individual freedom only when consideration for others is necessary. She aims to clarify (1) the type of autonomy recognized by the consent law and (2) how it can be decoded into the legal set of rules. The law deems that adults are autonomous unless otherwise demonstrated. However, she points out a problem that being an autonomous person does not necessarily guarantee the decision made by that person is an autonomous one. The legal doctrine of consent upholds individualistic autonomy. For a decision to be deemed legally valid, it requires the provision of information, decisional capacity and voluntariness of the individual, and some evidence of understanding. Nonetheless, understanding or voluntariness is too complicated to be evaluated and ensured by law. Through the review of court decisions, the legal rules of consent appear to be far from the counterpart of the ethical concept of autonomy. Firstly, the law not only protects individual rights to self-determination, but also reflects public policy, and it seeks balance between competing interests. In healthcare decision making, relevant information to be provided to the patient is determined by an objective standard, i.e., what the reasonable person wants to know. Although healthcare decisions are highly personal and so is the ethical concept of autonomy, specific needs of a particular patient are unlikely to be considered in law. Secondly, the law has traditionally respected the opinion of healthcare professionals whose major concern is the patient well-being. This may imply that the law as well as medicine tends to prioritize beneficence. That is, the consent law does not exclusively protect the patient's right to self-determination, but rather protects both patients and healthcare professionals in the context of healthcare. Thus, McLean argues that the consent law, due to its goals and processes, functions inconsistently and only in a limited manner to protect individualistic autonomy or the patient-centered position.

In the subsequent four chapters, she illustrates contentious areas in healthcare to demonstrate the ambiguity and inconsistency of court decisions. The law supports different models of autonomy depending on the context. The law endorses rejection of life-sustaining treatment solely on the ground that the patient is legally competent, whereas it is not the case for seeking assistance with dying because the community interest of preserving human life is prioritized. She argues that while the distinction between omissions versus acts cannot be morally justified, the law is making such distinction for public policy purposes. Concerning pregnant women, consideration for others, i.e., the embryo or fetus, can significantly compromise the pregnant woman's autonomy. McLean presents American cases where pregnant women were arrested or received court orders due to their behavior that might harm the fetus, or British cases where they were forced to undergo obstetrical interventions for the well-being of the fetus. Genetics poses a unique issue, as the person's genetic information may be beneficial for the relatives or the partner to know. What should be the obligation of the clinician who tested the patient for genetic information? Privacy must be protected; however, the information could be crucial to others. McLean says that the law's approach is indecisive on this issue and neither model of autonomy seems to be dominantly applied. Through the descriptions in these specific areas, McLean persuasively depicts the inconsistency of the law regarding the kind of autonomy -- individualistic or relational -- it supports. In the last chapter on organ transplantation, living donation is presented as an example which may perhaps be endorsed either by individualistic or relational autonomy. Finally, she refers to the political and clinical pressure to increase the number of organ supply, which has led some countries to adopt a policy that presumes consent for cadaveric organ donation. Under this policy, the organ will be harvested unless otherwise expressed in advance. She argues that such policy must demonstrate clear evidence of the benefit it generates because it obviously diverts from the consent-based model which is valued by the current law. She also notes that the policy which upholds organ donation without explicit consent implies the ambivalence of the state and the law about autonomy itself.

By and large, McLean is convincing. However, there may be slight ambiguity in her arguments. While her discussions well demonstrate the inconsistency and hence the unpredictability of the law or court decisions regarding the type of autonomy being applied, we may wonder how her basic view -- that the difference between individualistic and relational autonomy is not fundamental, but rather artificial -- aligns with these discussions. It seems that her concern lies in the situation where the alleged difference between these two models may allow justification for the irrelevant focus on the interest of others including state policy. This, however, may have more to do with the law's goal to seek balance between competing interests and less with the type of autonomy it upholds. In contrast, the other point she makes -- that the consent law has no more than a limited relationship to any model of autonomy -- may carry more significance. If the consent law is not fully capable of ensuring the individual to make an autonomous decision, our society may lack practical means of respecting autonomy, which should be of serious concern. In sum, she provides us with an invaluable perspective on rethinking patient autonomy. This book will be provocative and interesting particularly to those involved in healthcare, law and bioethics.

 

© 2010 Kyoko Wada

 

Kyoko Wada, MD, anesthesiologist, MA in bioethics (Monash University), currently bioethics research fellow at the University of Western Ontario.


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