INTRODUCTION
Infringement of autonomy as actionable damage could transform the medical negligence action. Unrestrained, it could have untold consequences. Autonomy is a fundamental human interest that it is desirable to protect, particularly in medical negligence. But infringement of autonomy as damage in medical negligence would require altering the theoretical framework. As a result, although many torts protect autonomy indirectly, and judicial enthusiasm for protecting patient autonomy is clear, courts have shied away from recognising infringement of autonomy as damage in almost every common law jurisdiction. Reasons include the wide-ranging nature of the interest and challenges in providing a workable definition, floodgates concerns because of its potential applicability in every negligence scenario, and because it does not fit within the traditional ‘loss’ framework of negligence law; vindication of interests or rights in negligence law has encountered resistance …
€ (Westlaw)
Sarah Fulham-McQuillan, ‘Infringement of autonomy as damage in medical negligence’ (2023) 139 Law Quarterly Review (Jan), 126-152.
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