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Autonomy Legal Implications

by admin_lg

Autonomy (literally « self-government ») refers to the ability to live according to one`s own reasons and motivations. As for the autonomy of ordinary citizens, Western society has undergone a radical change over the past 350 years. Before the Enlightenment, most people lived under the reign of a monarch or a similar type of authority. Early Enlightenment philosophers (e.g., Hobbes, Locke, and Rousseau) advocated what is now called the theory of social contracts. This is the view that people`s moral and political obligations should depend on an agreement between them on the rules that will apply in their respective societies. In the simplest case, self-government refers to self-government. In this fundamental sense, it is less a normative concept than an empirical question: we do not know ex ante whether (or to what extent) autonomy is good. Rather, we ask ourselves whether autonomy exists in any situation: does a person direct his action? If so, it is autonomous, otherwise, it is not. This does not tell us that he should govern himself. Whether it is good for people to govern themselves, or to what extent they should do so, are complex issues. There are different problems. For example, there is concern about the authority that the « self » has over a self-governor: is a young child capable of autonomy, or is he too ignorant and irrational to govern himself? Is autonomy an absolute matter, which means that one is autonomous or not, or is it graduated or context-specific, which means that one can be more or less autonomous? Is there a particular normative concern because of something like an adult human being, simply because of his or her ability to be autonomous? If so, does this also apply to someone who has the potential to become self-reliant? Consideration of these issues has dominated ethical debates about physician-patient interactions, leading to more practical normative questions. For example: How much information should a doctor give a patient about a proposed procedure?11 Does a patient have the right not to know the details of a medical condition?12 Should a patient be able to request an intervention, even if a medical expert considers it harmful?13 Dealing with radically different normative issues, these issues are not always sufficiently nuanced to achieve satisfactory results.

Analyses. Therefore, we need to clarify what our focus on autonomy implies in order to allow for meaningful discourse. Although the courts have defined the availability of alternatives as « essential » facts that must be disclosed,88 Al Hamwi remains different because it refers to the disclosure itself rather than what is disclosed. Disclosure means nothing unless the patient understands the information, and it is ironic that the protection of liberty has undermined autonomy. Ms. Al Hamwi needed more than just information, and the law did not provide for this in her case. The judge`s approach, which calls for mediation of the list of risks and the patient`s own decision, is simply not sufficient to protect a significant form of autonomy. In this case, the law misses its stated purpose of protecting the patient`s autonomy. While we don`t want to exaggerate the importance of Al Hamwi, it is important to be the first example of a disclosure case rather than a significant risk case, and represents an extreme application of the approach found in cases like Chester. By promoting freedom, autonomy has fallen into oblivion. These effects are mitigated when we look at the practical legal reality, but their urgency should not be underestimated.

The common law has already developed the category of « vulnerable adults » who meet the functional performance criterion (see below), but who are denied decision-making power so that more « rational » decisions can be made.27 And in a less organized way, jurisprudence in the broad sense betrays the use of « Kantian » rationality as the basis for denying decision-making capacity.28 It is reasonable to assume,29 That Lord Donaldson`s famous statement that the Law on Decision-Making should resemble satisfaction and not rationality30 stems from the concern to protect the plural and immeasurable moral values that exist in the population and to protect people from excessive interference in their decision-making. Yet this formalized « fish position » remains at odds with concerns about the well-being of the weak and has not been applied consistently.31 It is difficult to find a principled and solidly applicable theory that allows for plural views and does not arbitrarily consider caring for the « truly incompetent » (for lack of a better term).