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Abstract

By comparing and contrasting four specific areas within English medical law – informed consent, mental capacity of adults, mental capacity of children, and mental health – this essay observes a fundamental shift from medical paternalism towards patient autonomy in the UK. The general position is that a competent adult with capacity has an almost absolute right to informedly consent to or refuse medical treatment, while those not qualifying as such are  assisted so far as practicable in enabling them to make choices concerning their medical treatment in the most autonomous way possible. However, this commitment to patient autonomy lacks coherence. This essay identifies three main reasons for this. Firstly, a degree of unjustified paternalism remains even with regard to competent adults – especially in the case of mentally ill patients. Secondly, by viewing autonomy in predominantly individualistic terms, the law disregards how patients’ interdependences and relationships may be constitutive – not destructive – of their autonomy. Thus, it unfairly subjects those incapable of an individualised sense of independence to the ‘best interests’ test. Thirdly, the ‘best interests’ test is ill-equipped to uphold such patients’ autonomy. This essay argues that reenvisioning autonomy in relational terms is a vital starting point to address the current incoherencies.

How to Cite: Basri, N., 2019. The Coherence of the Principle of Patient Autonomy in the English Medical Law: A Re-evaluation. LSE Law Review, 5, pp.31–48.