Patient Autonomy in Modern Healthcare

The ‘Bolam’ principle was traditionally the test deciding how much information ought to be disclosed to avoid liability. It stated that a professional could follow minority practices and not be liable in negligence for any damage caused. A doctor could not be guilty because he had acted how other responsible doctors exercising their professional judgment would. Montgomery went further in its approach, calling for the consideration of any ‘material or significant risks’ relevant to the ‘prudent patient’, including those that are comparatively uncommon. As a result, there is now a better focus on ‘patient-centered care’, improving patient autonomy and individual rights to self-governance. Departing from Bolam has meant the entrenched culture of paternalism, in which limited information available is being left behind in favor of a more logical approach. Miola and Brazier claim that judicial will was determined to return Bolam to its intended context and its usage was an indication of inappropriately deferring to a medical opinion. It is obvious that Lord Diplock’s judgment in Sidway arguing that providing patients all information about their risks will serve only to affect their mental and physical well-being is no longer plausible. It was a manifestation of paternalism which is an idea inconsistent with the principle of patient autonomy and, the law and its development thus far is a reflection of this view. Having said this, in reality, it is better to state that medical decision making currently involves a combination of autono my and paternalism, the voice of the patient has nevertheless been elevated.

Redress

If full disclosure of risks is not sufficiently carried out, then patient autonomy can also be promoted via methods of redress that are available to promote legal standards. Firstly, there is guidance available to healthcare professionals from the General Medical Council in the UK; the standards of practice regarding informed consent require ‘patience’, ‘time’ and ‘clarity in explanation’. There is an automatic duty of care owed by doctors to their patients because they assume responsibility of them. Failing to completely inform a patient about risks involved with their treatment would be a breach of this duty, resultant in an action in negligence. As previously mentioned, the tests above the fence the parameters of this and help decide the standard of care a patient is owed. In realizing that when professional opinion is incapable of withstanding logic the court can hold it invalid, it can be argued the law is promoting a patient-orientated view of healthcare. There is not unfettered deference to medical professionals. This was substantiated in Reynolds v North Tyneside Health Authority, a midwife’s failure to carry out a vaginal exam was held to be illogical, despite expert evidence supporting it. In addition to this, the treatment of a patient without appropriately informed consent could mean the doctor is guilty of assault or battery under criminal law. Although there are several ways to seek redress, Heywood’s research indicates that patients are unwilling to resort to legal action or complain. Similarly, Brazier suggests that legal action is an ‘inadequate’ way to investigate medical mistakes, especially because patients are less concerned about compensatory remedies. Many would just like to know what really happened. This weakens the argument that patient autonomy is promoted as redress is available because there is a reluctance to use it. However, the very existence of these methods of redress, compensation, and limits such as the Bolitho gloss suggests that the profession is regulating itself to have respect for patient autonomy.

Capasity And Consent

The final stage for a patient before treatment can begin is consenting and being deemed capable to do so. When a narrow interpretation of autonomy is adopted it would appear that it is restricted by the capacity requirement for consent. However, this paper argues that the law uses the capacity to adhere to autonomy instead. The capacity requirement is an integral part of the ‘autonomy paradigm’; it is an important prerequisite that promotes a combination of Coggon’s ‘best desire’ and ‘ideal desire’ autonomy. Modern healthcare contends that only capable patients can refuse treatment and in deciding the test for capacity the court must weigh up the values at stake. For instance, Gunn argues that respecting patient autonomy may mean setting the capacity standard low so more people can make their own decisions. Yet, there are values such as ‘sanctity of life’ which suggest that a higher standard of capacity still promotes autonomy; patients are protected from their own incompetent decisions. Furthermore, as Lord Goff stated in Airedale NHS Trust v Bland respecting the principle of self-determination means giving effect to unreasonable decisions if they are made by someone capable of consenting. In this way, the importance of capacity and the need to retain it can be seen.

The progress in law is further shown by the fact that under the Mental Capacity Act, even unwise and morally repugnant decisions are acceptable. For instance, in St George’s NHS Trust v S it was stated that a pregnant woman was perfectly capable of refusing any treatment that would save her or her child’s life, despite this being an unacceptable decision to many. This echoes patient autonomy because her right to refuse treatment is also formulated as her right to make decisions within her own value system, reinforcing Coggon’s ‘best desire’ approach. Furthermore, the significance of capacity in legal jurisprudence is also seen through cases where a patient’s right to refuse treatment has been upheld, despite it resulting in their death. As observed by Lord Donaldson in Re T (Adult: Refusal of Treatment) this is consistent with the concept of autonomy because why a patient makes this decision is irrelevant, whether the reasons be ‘rational, irrational, unknown, or even non-existent’. This case concerned a woman who was brought up as Jehovah’s Witness and refused a blood transfusion on religious grounds. Her right to refuse this treatment was recognized and the only qualification that was provided was that greater capacity is required when a decision is more serious. In contrast, in cases concerning anorexia patients, they are seen as lacking capacity because they are unable to weigh relevant information. This signals a return perhaps, to a status based-approach, when assessing capacity, which is what the law intended to move away from.

The common law approach was adopted in Re C (Adult: Refusal of Medical Treatment) through a functional assessment of capacity, requiring the following to be proven:

• The ability to comprehend and retain relevant information;the different approaches
• Belief in that information
• The ability to weigh this information and arrive at a choice.

Based on this, Thorpe J held the patient capable of refusing a lifesaving amputation and the test was subsequently approved by the Court of Appeal in Re MB. However, as with the previous stage, it can be argued the law has come far in promoting autonomy here as well because of its adoption of a statutory test that favors the ‘best interests’ approach. It was first applied in Aintree University NHS Foundation Trust v James and Lady Hale argued that the focus was on whether it was in the best interests of the patient to have the treatment, not whether it was in their best interests to withhold it. Therefore, in looking to an individual’s welfare and considering their psychological, social, and religious needs, autonomy is promoted better than it has been done before. Similarly, Cobb J took this into account in A NHS Foundation Trust v Ms. X where the patient suffered from severe anorexia and alcohol dependence syndrome which had caused chronic liver disease. He observed that forcible re-feeding would remove her from home life, increase her probability of self-harm and the trauma and distress would decrease her quality of life further. The decision here indicates the law has developed to have a more nuanced understanding of patient autonomy. It has come far considering cases such as Re E (Medical Treatment: Anorexia), where the patient was obligated to go through with unwanted treatment. Although capacity can be considered a restriction of patient autonomy, the law’s presumption of capacity and the functional test approach is theoretically and practically consistent with Coggon’s ‘best desire’ approach.

Conclusion

As with most, the theory of patient autonomy is hypothetically consistent. However, its limitations are revealed when it is applied in reality to healthcare situations. Many commentators have argued that a more realistic framework needs to be adopted to decision making in this area, Donnelly for instance advocates for a ‘human rights’ model which takes into account other issues, such as bodily integrity, restraint, and resistance. An integral part of this approach would be mechanisms that monitor decisions but more importantly, allow patients to reject treatment despite their incapacity. Arguably, however, there are also a host of issues associated with allowing patients who lack the capacity to make decisions as well. There are several approaches and suggestions that have been put forward by critics to improve autonomy or expand its definition, but they too will find it difficult to consistently place patient autonomy first because there are situations, such as access to healthcare, in which it should not come first. The advantage the current framework has, is that it has been subject to vigorous legal discussion and analysis, so when the law chooses to evolve it can do so with this debate in hindsight.

There is no doubt that the principle of autonomy demands respect for an individual’s choices, even if they differ from conventional societal views of reason and sense. As O’Neill argues, it is a concept that has become ‘central in large parts of bioethics and medical ethics’ and its importance is not to be undermined. From the analysis above, it is obvious that patient autonomy does conflict with the majority of legal regulation of medical treatment, but this was bound to be inevitable; it is a complex idea and a difficult concept to begin with. Similarly, although ‘best desire’ autonomy is generally the conception that is preferred, in reality ‘ideal desire’ and ‘current desire’ autonomy also has functions in society. Therefore, perhaps it is better to argue that patient autonomy does not need to be at the forefront of every decision in the medical profession. For instance, our resources require that we consider societal needs before individual needs when deciding on healthcare budgetary issues. In situations such as the disclosure of information and consent, although the law has developed slowly to respond to modern conceptions of autonomy, it has not disregarded it completely. Instead, it has encouraged differing and more distinct notions of autonomy to be considered, through the Mental Capacity Act for example. Consequently, it is best to conclude by stating as McLean and Mason do, the law is currently driving towards improving what we have, and this is in itself is to be applauded.