Abstract:
When constructing its responses to cases concerning the treatment and non-treatment of patients, both competent and incompetent, English medical law primarily uses two analytic tools: the autonomy and the welfare (or best interests) of the patient. I argue, however, that the construction going on behind the facade involves the use of more — and more precise — tools. In such cases, the law effectively asks three questions. The first, autonomy, question asks: is the proposed course desired by the patient? The second, best interests, question asks: if the patient is not autonomous, then (what) is the proposed course in the patient’s best interests? And the third, public interest, question asks: whether or not the patient is autonomous, is the proposed course in the public interest? In its responses to each question, law then offers three different answers, which reveal a plurality of ethical commitments. Thus, the wishes of the (autonomous) patient might reflect her current, her best, or her ideal desires. The best interests of the (non-autonomous) patient, meanwhile, are variously articulated in terms of (again) her desires, or the promotion or preservation of a particular mental state, or the attainment of certain objective goods. Finally, and most often obscured from view, there are public interest concerns — with the interests of the patient, some other (or others), or even the community at large. In identifying these different questions and answers, I hope to provide an explanatory typology. Whether law’s plurality of answers — and values — is appropriate, however, remains open to question.
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Richard Huxtable, Autonomy, Best Interests And The Public Interest: Treatment, Non-Treatment And The Values Of Medical Law. Medical Law Review (Autumn 2014), 22(4): 459-493, doi: 10.1093/medlaw/fwt035.
First posted 2014-11-19 15:13:48
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