On Autonomy

Taking a break from my books. Hence, this...
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The recent decision of with regards to the recent Malaysian case brought forward by a Jehovah's witness against the UMMC has got me thinking about the doctrine of autonomy.
Yup, it's gotten me excited as I never thought that this would happen here!!!! We're taking babysteps towards the European Court of Human Rights (ECHR)!!! *wishful thinking*

1. There is a strong and pressing need to uphold and to respect a patient's wishes.
2. Yet, at the same time, there is a need for the courts and the healthcare profession to respect the santity of life.

Jehovah's witnesses are a 'sticky category' to handle. They refuse blood products. Hence, many may refuse a life-saving operation or blood transfusion. Undoubtedly, doctors are clearly in favour of saving lives. But, are they content to sit back and watch the patient die despite having provided them with sufficient advice regarding the pros and cons of the refusal of e.g. an elective C-section?

Should the doctors and courts respect their autonomous wishes or should they act in favour of preservation of life, with disregard to the patient's religious views?
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The following is an exerpt taken from my essay entitled,
“Belatedly, English judges now recognise and endorse patients’ rights to make their own choices about medical treatment”.
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As individuals, we appreciate and value our right to make decisions concerning our daily lives. We relish the opportunity to live our lives as we deem fit. However, as far as medical treatment is concerned, is appears that the courts seem to be more keen on paying lip service to this principle. Whilst it appears to straightforward within the normal context of doctor-patient relationship, the harsh realities that befall certain categories fall foul of applying the autonomous principles. For example, pregnant women and Jehovah’s witnesses.

The Basics

In the usual course of things, all patients are presumed to be competent unless proven otherwise. The test for competence is set out in Re C; [1] a patient is considered competent if he is able to take in, retain, believe and weigh the given information, and subsequently make an informed decision based on his understanding of the medical information and advice given.

The dicta of Lord Scarman in Sidaway v Bethlem Royal Hospital Governors [2] adopted an ‘informed consent’ approach. A doctor must disclose information that a reasonable patient would like to know, due to respect for autonomy. Therefore, doctors are now duty bound to disclose information significant to assist the patients in making an informed choice. This in return, represents a higher degree of acknowledgement towards patient autonomy. Even so, it is not absolute.

The Uphill Battle

Doctors could and would always rely on the defence of therapeutic privilege.[3] So long as the disclosure of any information poses a risk of psychological damage or harm to the patient, the withholding of the information or the provision of certain medical treatment is justified. It is undoubtedly easier for the doctor to hold a patient incompetent rather than for a patient to prove his alleged competence in our society which places emphasis on medical opinions.

We face an uphill battle in upholding autonomy!

Pregnancy & Religion

As far as pregnant women and Jehovah witnesses are concerned, the courts always seem to favour beneficence to autonomy. This is regrettable, but true. In this particular area, the courts despite having endorsed this principle do not seem to be applying what they have rubber-stamped. Autonomy is a farce!

Firstly, all medical decisions concerning pregnant women must be taken, having considered two sets of interests; that of the mother and of the unborn child. How are we to balance both sets of interests? And the situation is further complicated in instances of Jehovah’s witnesses where believers often decline the receipt of any blood products. The general position as held in the UK is that so long as there is an express declaration by the patient stating his/her refusal to accept such blood products, the doctors are to respect such wishes.

However, in reality, how many doctors/healthcare professionals would be willing to stand back, with their arms folded and watch their patients die? Would courts be so daring as to uphold autonomy at the expense of one's life. Realistically speaking, upholding the autonomous decisions of patients is nothing more than a moral ideal.

The Practice: By Courts and Healthcare Practitioners

A myriad of previous decisions have ruled out any independent right of life of the foetus. In C v S and in Paton v UK, both cases held that the unborn foetus has no right of its own.[4] As it is entirely dependent on its mother, the decision of a pregnant woman (if competent) must be respected even if it means that the life of the foetus would be endangered as a result.[5] So long as the pregnant woman is competent, her decision ought to be respected even if it may be unconventional and unacceptable according normal social standards.

Life is not a bed of roses. All is well when the patient submits to the recommended course of treatment. But, when she refuses, the doctors (and often courts) would endeavour all means possible in their attempts to provide what they seem to be the best and appropriate treatment to their patients. As such, when a pregnant woman refuses consent for a life-saving Caesarean section, their decision would often be challenged on grounds of incompetence. The fact that she is a Jehovah's witness further acts to the medico-legal/bio-ethical confusion.

Despite specific endorsements towards the autonomous rights of pregnant women in Re MB (An Adult: Medical Treatment) and St. George’s Healthcare Trust v S, such approach is clearly out of favour with medical professionals and the courts. Notwithstanding the competence and the autonomous wishes of the mother, judges favour the preservation of the life of a child.

In almost each case, the justifiability of judicial decisions is often based on the notion of best interests. Doctors and courts often see this as a backdoor to overrule autonomy. Arguments may be based on the far-fetched notion that having carried the child to term, it is in the mother’s best interests to have the child delivered. It would definitely have been her primary intention, and but for her diminished capacity (i.e. labour pains and complications that may have affected her rational thinking), she would not have refused any treatment that would have risked her child’s life. And as the courts are in favour of the preservation of lives it is of no surprise that they find no difficulties of buying this argument.

For instance, in Re MB, the patient exhibited clear signs of fluctuating capacity. She had expressly consented to the operation only to withdraw it at the very last minute on numerous occasions due to her fear of needles. In this case, the court held that she was incompetent as she was unable to weigh the information given. Nonetheless, it was in her best interest to undergo a Caesarean section. Both parents wanted their child to be born, but for the mother's needle phobia.[6] Likewise, in Re L¸ the patient’s extreme needle phobia amounted to an involuntary compulsion that diminished her ability to weigh the information sufficiently in order to make a well-informed choice.[7] Admittedly, both cases do little to champion autonomy. Rather, it seems sanction medical decisions that are strongly based on the notion of best interests.[8] Hence, paternalism.

The Conclusion

Sadly, but true, the courts might be reluctant to admit that they still favour the doctrine of sanctity of life. Thus, they act to protect the life of the child, at the expense of the mother’s autonomy; all under the pretence of best interests. It is therefore without a doubt that autonomy in this particular area is nothing but a farce.

Having said that (and before I am shot by the courts and medics), medical paternalism is not necessarily a bad thing. At times, patients do need a certain amount of assistance when their rational judgments seem to be blurred by a host of other factors. Thus, the courts and healthcare professionals have an inherent duty to protect them from making mistakes that they would potentially regret later on. But when should they cease to protect?

Yes, upholding autonomy is a moral ideal, but would the preservation of the santity of life justify the overruling of such ideals?

I am still in a bind.


-LV-
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[1] Re C (Adult: Refusal of Treatment) [1994] 1 All ER 819
[2] Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643 (HL)
Harrington, J. Privileging the Medical Norm: Liberalism, Self-Determination and Refusal of Treatment (1996) 16 LS 348 at p. 352 - 353
[3] Sidaway v Board of Governors of the Bethlem Royal Hospital op. cit.
Mason, J.K., Mason and McCall Smith’s Law and Medical Ethics, 7th ed.,
(Oxford: Oxford University Press, 2006), p. 402
[4] C v S [1987] 1 All ER 1230, Paton v UK [1980] 3 EHRR 408
[5] Re MB (An Adult: Medical Treatment) [1997] 2 FCR 541 at p. 553
[6] Mason, op. cit., p 380
[7] Kirkland J. in Re L as quoted in Re MB
[8] Ibid.