Autonomy, Consent and the Law by Sheila A.M. McLean

By Sheila A.M. McLean

Autonomy is frequently stated to be the dominant moral precept in glossy bioethics, and it's also very important in legislation. appreciate for autonomy is expounded to underpin the legislation of consent, that is theoretically designed to guard definitely the right of sufferers to make judgements according to their very own values and for his or her personal purposes. The inspiration that consent underpins beneficent and lawful clinical intervention is deeply rooted within the jurisprudence of nations in the course of the global. even though, Autonomy, Consent and the Law demanding situations the connection among consent principles and autonomy, arguing that the very nature of the criminal strategy inhibits its skill to appreciate autonomy, in particular in situations the place sufferers argue that their skill to behave autonomously has been lowered or denied a result of withholding of knowledge which they'd have desired to obtain.

Sheila McLean extra argues that the bioethical debate concerning the precise nature of autonomy – whereas wealthy and challenging – has had little if any influence at the legislations. utilizing the alleged contrast among the individualistic and the relational types of autonomy as a template, the writer proposes that, whereas it would be assumed that the model ostensibly most popular via legislations – approximately resembling the individualistic version – will be transparently and continually utilized, in truth courts have vacillated among the 2 to accomplish policy-based targets. this is often highlighted through exam of 4 particular components of the legislations which such a lot quite simply lend themselves to attention of the appliance of the autonomy precept: particularly refusal of life-sustaining remedy and assisted loss of life, maternal/foetal matters, genetics and transplantation.

This e-book may be of significant curiosity to students of clinical legislation and bioethics.

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99 Jackson, E, Regulating Reproduction: Law, Technology and Autonomy, Oxford, Hart Publishing, 2001, at p 3. 100 Ibid. ’102 Yet, as Oshana points out, the liberal account is not necessarily ‘at odds with the goods and values provided within the community. ’103 Indeed, even within the human rights agenda, some account is taken of societal interests. For example, even in the European Convention on Human Rights,104 few rights are absolute; most contain permissible derogations in, for example, the interests of public health or public morals.

As I have suggested, one reason for this is probably the growth of the language of human rights throughout the 20th and into the 21st century, which acts to discourage passivity and seeks to redress power imbalances. Recognising the importance of individual rights prompts challenge and encourages emphasis on self-determining behaviour. Indeed, the rights that are central to every human rights declaration or treaty are essentially equivalent to respect for autonomy. The international community, in commending member states to the facilitation and endorsement of the norms of human rights, specifically requires that attention is paid to the extent to which the individual’s autonomy is maximised in political, social (or professional) relationships.

Gauthier, C C, ‘The Virtue of Moral Responsibility in Healthcare Decisionmaking’, Cambridge Q of Healthcare Ethics, 11, 2002: 273–81, at p 276. , at p 276. , at p 344. , at p 348. , at p 277. ’93 In theoretical and legal terms, however, the shift from individualistic to relational autonomy could have important consequences, since, as we have seen, what is categorised as ‘private’ (individual) is subject in the liberal tradition to fewer restrictions than the ‘public’, which could be more closely equated with ‘socially engaged’ or relational decisions.

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