Download Healthcare Decision-Making and the Law: Autonomy, Capacity by Mary Donnelly PDF
By Mary Donnelly
This research of the law's method of healthcare decision-making reviews its liberal foundations in recognize of 3 different types of individuals: adults with potential, adults with out ability and adults who're topic to psychological well-being laws. Focussing totally on the legislations in England and Wales, the research additionally attracts at the legislations within the usa, criminal positions in Australia, Canada, eire, New Zealand and Scotland and at the human rights protections supplied by means of the ECHR and the conference at the Rights of individuals with Disabilities. Having pointed out the restrictions of a felony view of autonomy as essentially a precept of non-interference, Mary Donnelly questions the effectiveness of capability as a gatekeeper for the perfect of autonomy and advocates either an elevated position for human rights in constructing the conceptual foundation for the legislations and the grounding of destiny felony advancements in an in depth empirical interrogation of the legislation in perform.
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Additional resources for Healthcare Decision-Making and the Law: Autonomy, Capacity and the Limits of Liberalism
Sample text
The chapter argues that these conceptions of autonomy can provide a better basis for the law’s approach to the principle. Chapter 2 explores the law’s treatment of the autonomy principle. As will be evident from the discussion in this chapter, to date most legal discussion of autonomy has occurred in the context of treatment refusal. The right of autonomy has been conceptualised largely as a negative right to reject treatment choices made by professionals. There has been limited exploration of the question of limits on this right and relatively little legal discussion of a view of autonomy focused on empowerment.
Chapter 5 is concerned with people who lack the capacity to make a healthcare decision and who, as a result, are sidelined by a framework focused on autonomy. The chapter identifies the flaws in the two traditional approaches to decision-making in this context, the best interests standard, which has been favoured in England and Wales, and the substituted judgment standard, which has been adopted in jurisdictions in the United States. It evaluates the efforts of the MCA to provide a blend of the two standards, which recognises the past and present wishes of the person lacking capacity within a framework that remains centred on best interests.
R. Gillon, Philosophical Medical Ethics (Chichester: John Wiley, 1985), p. 64. See also M. Charlesworth, Bioethics in a Liberal Society (Cambridge University Press, 1993), pp. 12–13. I. Kant, Groundwork of the Metaphysics of Morals (1785), p. 402, (from M. ) Kant: Groundwork of the Metaphysics of Morals (Cambridge Texts in the History of Philosophy) (Cambridge University Press, 1997). Although there is only one Categorical Imperative, Kant formulated the universal law in three different ways. The other two are: ‘Act in such a way that you treat humanity, whether in your own person or in the person of any other, always at the same time as an end and never merely as a means to an end’ and ‘Every rational being must so act as if he were through his maxim always a legislating member of the universal kingdom of ends’.