Medical Law Review, 19, Winter 2011, pp.

150–155

BOOK REVIEW

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SHEILA A. M. MCLEAN, Autonomy, Consent and the Law, Routledge, 2010,
Paperback, 248 pp., £29.99

All too often nowadays, medical lawyers rely on autonomy as their fallback
argument. If all else fails, assert that the law’s ultimate task is to protect this
right. However, these claims are sometimes made with little thought as to the
nature of the right itself, whether in fact decisions can ever be truly autonomous
and, crucially, whether the law does indeed provide any concrete protection for
self-determination. What is clear from this is that the concept of autonomy is
much more complicated than at first it may seem and any attempt to unravel
its multi-faceted strands and how these relate to the law would be an incredibly
difficult challenge for any contemporary scholar. Professor McLean sets about
this task with consummate ease and does an excellent job.
From the outset, McLean was faced with the difficulty of having to find the
correct balance between providing an appropriate analysis of autonomy in a
bioethical context and a suitable examination of how this correlates with the
law of consent. For the most part, the correct balance is struck; the text is
neither dominated too much by ethical and moral discourse, nor is it too
heavily weighted with legal analysis. The beauty of the book is the author’s
ability to maintain a consistent thread throughout her argument and to always
link the analysis back to the overriding objective of the thesis, namely to
examine to what extent, if any, the law can be said to safeguard autonomy.
McLean’s succinct and concise writing style adds strength to her claims and
she has managed to capture the essence of some complicated theories and
present them in a manner that is clear and easy to understand. The book
draws on a range of contemporary literature to support and sometimes discount
various arguments, but at the same time the author does not shy away from
offering her own opinions which leads to a very balanced account.
The book consists of eight chapters which are structured to portray an evolving
story. After some general scene setting in the introduction, McLean opens up by
discussing the philosophical tenants of the Hippocratic Oath and highlights how
the sentiments found in Hippocratic traditions were perhaps in part responsible
for shaping the historical attitude of paternalism within the medical profession.
The narrative then progresses to examine how these attitudes have changed
slowly and suggests, correctly, that autonomy is now the dominant concept in a
society where the language of human and patient rights enjoys an elevated
status. Two accounts of autonomy are selected for in-depth analysis: individualis-
tic and relational. No criticism can be made of the author for focusing on just these
two; there are many different interpretations of autonomy and to devote sufficient
space to do them all justice would leave little if no room for much else. Despite an
explanation of these two accounts being most relevant to healthcare settings, at this
stage of the book I found myself wondering how the discussion of these two
accounts would fit with the rest of the text and how they would feature in the

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Med. L. Rev. Book Review 151

later stages of the legal analysis. My concerns were duly answered as I read on. The
second and third chapters provide the linkage and are critical for the reader in the

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sense that they make the transition between philosophy and the law in a way that
sets the scene for the remainder of the book. The third chapter, in particular, pre-
sents a visible change in emphasis and moves delicately away from the philosophi-
cal arguments concerning autonomy towards the legal investigation; the change is
subtle and understated but clear enough for the reader to connect the arguments
about the relationship between autonomy in theory and how the law attempts to
protect the right through the doctrine of consent. This chapter is used to build a
general overview of the laws which underpin consent and their relative strengths
and weaknesses and provides a platform for progression from the general to the
specific in the later sections. Chapters 4–7 deal, in turn, with autonomy and the
law in particular situational contexts. The author concentrates on autonomy at
the end-of-life, autonomy and pregnancy, autonomy and genetic information,
and autonomy in organ transplantation. The danger for any writer here would
be to lose sight of the overall theme, which may result in the analysis becoming frag-
mented and compartmentalised. Thankfully, McLean does not fall into this trap
and it is during these chapters that the reader begins to realise why the two specific
accounts of autonomy are offered earlier on. One of the inherent strengths of this
work is the manner in which the analysis constantly reverts back to individual and
relational autonomy. The author chooses to address the law’s appreciation of
autonomy in very specific circumstances and throughout there is considered reflec-
tion on which account of autonomy the law seems to be supporting and why.
Certain examples are given which demonstrate the tension that is created when
the law favours one account over the other and how this can be inappropriate in
some contexts. Equally, the author also draws the reader’s attention to the fact
that there is, for her at least, a degree of overlap between the two models of auton-
omy and that, whilst at first blush the two are conceptually different, they are some-
times closer than some commentators would have us believe. The back and forth
nature of the discussion keeps the reader on track, helps to maintain a balanced per-
spective, and adds an interesting dimension to the work.
In terms of substantive content, some may make the accusation that the argu-
ments are well rehearsed and lack originality. This is not so because, whilst not
all the arguments are new, they are presented from a different and challenging
perspective. However, a case could be made for questioning certain aspects of
the legal analysis. For example, in Chapter 3, which explores the general law
relating to consent, the author criticises the nature of tort law as the modern
vehicle for protecting patient autonomy. This argument, one which the
current reviewer supports, is time-honoured amongst legal scholars and tort’s
limitations in respect of consent and information disclosure are clear. McLean
is correct to stress this, but one possible criticism of the analysis is that it does
the law of tort a disservice. The evolution of clinical negligence has, historically,
clearly favoured the medical profession and has done so at the expense of patient
rights. Nonetheless, there has, of late, been a subtle change in attitude which, for
many, has been long overdue. The text deals with all these points but perhaps
focuses too much on what the law has failed to do in the past, instead of
what it could potentially do in the future. Negligence is a dynamic area of
152 M EDICAL L AW R EVIEW [2011]

law that is capable of remaining sensitive to change. There is little in-depth

exploration of what the law of negligence could do to articulate a workable

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duty on doctors to take reasonable steps to promote patient understanding.1
Similarly, more time could perhaps have been devoted to the law of negligence’s
growing commitment to a duty to disclose alternative treatments out of respect for
patient autonomy.2 The difficulties in respect of the inherent objectivity of negli-
gence and the problems which are encountered when it attempts to protect indi-
vidual autonomy by transforming a particular patient into the hypothetical
reasonable patient are neatly illustrated. Yet, it may have been useful to give
more attention to exploring negligence’s ability to accommodate the position of
the particular patient. This is dealt with rather briefly and is intertwined with
some reference to the Canadian case of Reibl v Hughes. 3 One unfortunate conse-
quence of this is that it blends the analysis of the subjective/objective test for cau-
sation with that of the objective/subjective standard of care.4 It may have been
appropriate to deal with the latter in the context of the Australian case of
Rogers v Whitaker. 5 The case is mentioned earlier in the book, but no specific
reference is made here to the subjective component that many suggest was
included in the standard of care. This may have been a suitable opportunity to
demonstrate that there is the possibility of a workable subjective limb to the dis-
closure test which, if utilised correctly, does not overexpose doctors to the threat of
vexatious litigation and at the same time provides greater respect for patient
autonomy. Likewise, various extracts are quoted from the House of Lords’
decision in Chester v Afshar,6 but there is little engagement with the judicial
reasoning in the case. Whatever the opinion on what their Lordships actually
did to the stringent rules of causation, it appears that their perception, at least,
was that they were modifying the legal rules in this area and were doing so in
order to give teeth to the law’s protection of self-determination. It may be that
Chester has in fact changed very little, particularly when viewed against the back-
drop of the later House of Lords’ decision in Gregg v Scott 7 (which is not men-
tioned in this book), but its true significance may be in the symbolic gesture that
their Lordships made in illustrating that judges can, and sometimes will, utilise
the law of negligence’s flexibility to accommodate patient rights.

1
See Lybert v Warrington Health Authority (1995) 25 BMLR 91; Smith v Tunbridge
Wells HA [1994] 5 Med LR 334; Smith v Salford Health Authority [1994] 5 Med LR
321. For discussion, see K Williams, ‘Comprehending Disclosure: Must Patients Under-
stand the Risks They Run?’ (2000) 4 Med L Int 97.
2
See recently Birch v University College Hospitals NHS Trust [2008] EWHC 2237.
3
[1980] 2 SCR 880.
4
In terms of causation, English law has always favoured a subjective test measured against
an objective standard of what a reasonable patient in the claimant’s shoes would prob-
ably have done. This is not made clear in the book. See Smith v Barking, Havering and
Brentwood HA (1998), [1994] 5 Med LR 285; McAllister v Lewisham and North
Southwark Health Authority [1994] 5 Med LR 343. See also for further discussion,
MA Jones, ‘But-For Causation in Actions for Non-Disclosure of Risks’ (2002) 18 JPN
192.
5
(1992) 175 CLR 479.
6
[2004] UKHL 41.
7
[2005] UKHL 2. The case is not specifically an information disclosure case and so the
author may be forgiven. However, it may still have been worth a mention in the same
way that Bolitho v City and Hackney HA [1998] AC 232 is mentioned earlier in the
book.
Med. L. Rev. Book Review 153

Chapters 4 and 5 offer a close look at autonomy at the end of life and autonomy
in pregnancy, respectively. One source of friction that is identified in the end-of-life

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chapter is the law’s ‘schizophrenic’ approach to end-of-life decision-making
( p. 127). Much of the debate in this section centres on the distinction between
acts and omissions and one point comes across clearly. In maintaining this
hollow distinction, the end product that we are left with, which continues to
bedevil English law, is that those patients who are in a position to refuse life-saving
treatment can choose the manner and timing of their death, whereas those patients
who require active assistance cannot. With this in mind, it is concluded that the law
has created an ‘unhappy’ blend of individualistic and relational autonomy in which
self-determination, in the true sense of the word, is the real casualty ( p. 127). In
reading this chapter, I felt that the author betrayed a personal sense of frustration,
a frustration shared by this reviewer, about the problematic nature of the law in this
field and the need for reform. It is a pity that this book preceded the House of Lords’
decision in Purdy.8 It would have been very interesting to learn of McLean’s
opinion on the decision of their Lordships and to what extent, if any, the accep-
tance of Article 8 as being engaged in end-of-life decisions has developed
English law’s attitude towards the protection of patient autonomy.
The chapter on pregnancy has an interesting comparative element. The bulk of
the jurisprudence concerning court intervention prior to the actual point of birth
has originated from the USA and the author begins by concentrating the narrative
on this jurisdiction. It may seem strange for a British lawyer to start out with an
examination of US law, but there is a cogent reason for doing so. In the USA,
the courts have taken a much more active approach to the protection of foetal
rights at the expense of female autonomy and so an interesting point of contrast
is formed between this and the more passive attitude of their British counterparts.
Coercive legal interventions are clearly a threat to female autonomy and examples
are cited of certain lifestyle choices being made during pregnancy which expose
the foetus to the risks associated with addiction to legal and non-legal substances
and the US courts’ willingness act on behalf of the foetus. Two points are worthy
of note here. First, there is some interesting inter-disciplinary research which is
relied upon to question the actual effectiveness of coercive interventions as a deter-
rent to addictive behaviour. This is useful because, of course, a much better way of
dealing with the problem of addiction in pregnancy is to support, educate, and, to
the greatest extent possible, cooperate with the expectant mother, as opposed to
forcefully administering treatment regimes or, worse still, depriving her of her
liberty. Second, there is once again a succinct link back to relational autonomy
and how this seems to have taken precedence in policing pregnancy in the USA.
The analysis then switches to English law and, as there has been a paucity
of activity in terms of policing pregnancy, the spotlight turns to childbirth.
Without a doubt it is an accurate statement of English law to say that the
foetus enjoys no legal rights, but it is quite remarkable that, despite the theory
of the law being affirmed on several different occasions, the courts have more
frequently than not resolved any maternal foetal conflict in favour of the
latter. This point is perhaps not driven home as forcefully as it could be in

8
R (Purdy) v DPP [2009] UKHL 45.
154 M EDICAL L AW R EVIEW [2011]

relation to obstetrical interventions at the point of birth. Take the case of Re

MB,9 for example, which the author suggests clarified the legal position to the

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benefit of women ( p. 147). This assertion is correct, but it is a source of
anxiety for some that the courts sidestepped their resounding confirmation of
female autonomy with such ease. The fact that the caesarean section was auth-
orised on the grounds that the woman was temporarily mentally incapacitated is
not really explored to any great extent. A more extensive critique of this decision
would have been appropriate, particularly some questioning of the courts’ innate
willingness to find a way of reaching a desirable outcome in a given set of cir-
cumstances over and above purity of legal principle. If the commitment to
female autonomy can be swept aside so effortlessly, based on an open-ended
range of factors which may, at some stage, temporarily affect the majority of
women in pregnancy, is it really a commitment or does it become merely a
hollow gesture? That small point aside, I found this chapter to be thought pro-
voking as it challenged some of my own beliefs. My natural inclination is to
endorse autonomy, but I am uncertain which particular conception of autonomy
I prefer. At the start of the chapter, my instinct was that women should be
allowed to make their own choices in pregnancy. However, as I read on, I
found myself thinking carefully about what may be deemed irresponsible behav-
iour in terms of alcohol and drug abuse and realised that I have some difficulty in
condoning it. The author asks the question: ‘while we might prefer that pregnant
women do not behave in this way, and many will not, can it really be the role of
the law to prevent them from doing so?’ ( p. 139). After reading this book, my
answer is that the law may have a role, but I am unsure about the extent of
that role or the limits that should be placed on it. One of the key aims of aca-
demic writing is to make the reader think differently about a given subject
and McLean has achieved this both here and elsewhere in her work.
The next two chapters investigate autonomy and genetic information and
autonomy in organ transplantation. The relationship between genetic infor-
mation and the law is a contemporary field of study in its infancy. Advances
in both science and medicine have sparked a reaction in scholars who are con-
cerned about what role, if any, the law will play in regulating this sensitive infor-
mation. The author suggests that traditions of confidentiality and privacy are
threatened by genetic information which is undoubtedly true. It will be interest-
ing to see precisely what challenges are posed and how the law comes to deal
with them in the future. It seems, for the most part, that English law will main-
tain its adherence to individualistic autonomy, but this remains largely speculat-
ive at the moment and it is fair to say that ‘more legal activity will be needed to
understand the picture more fully’ ( p. 181). Whilst, for this reviewer, the domain
of genetic information is uncharted waters, the chapter was nonetheless intellec-
tually stimulating, well-written, and is a valuable contribution to a growing area
of law. Equally, the aspect of the book that covers organ transplantation raises
some interesting questions about the selling of organs and the desirability or
otherwise of the proposed opt-out system. Again, this chapter caused me to chal-
lenge my own personal assumptions about the status of individual autonomy. It

9
(1997) 38 BMLR 175.
Med. L. Rev. Book Review 155

seems clear that any move to introduce an opt-out system would sacrifice the
individual’s right of choice. Ordinarily, I would not support this, but is there

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just cause for overriding individual self-determination here? Perhaps there is,
but only if it can be firmly established that such a move would significantly
increase the number of posthumous organs that could be used to save lives.
To this end, McLean’s call for more robust empirical evidence into the proposed
scheme is well founded. If, in England, we move to such a system, it should only
be done so safe in the knowledge that individual autonomy is being overridden
for a greater good that really is a greater good. The chapter stops short of
suggesting what the author’s opinion would be if empirical evidence returned
findings that considerably more organs would become available under the
opt-out system. If this proved to be the case, it would be interesting to see
whether a commitment to individual autonomy would be maintained.
As can be seen from above, my only real criticism of this book is that, on the odd
occasion, the legal analysis is not as detailed as it could be and omits some impor-
tant points from key cases. However, this is only a minor quibble as the purpose of
this book is not to provide an in-depth legal discussion. Rather, the law is discussed
in the context of, and in relation to, other disciplines such as philosophy, medicine,
and science. The author clearly had to be selective in what she covered in a legal
sense as to do otherwise would cause unavoidable harm to the consistency of the
overall argument. My point is simply that, in places, sometimes a more appropriate
aspect of a case could have been chosen to support what the author is saying.
Where, then, does this book sit with other texts in this field? It certainly adds
something to the ever-increasing body of literature that explores autonomy.
There have been recent texts which have questioned the supremacy of autonomy
as a right and analysed the concept of autonomy and consent as a relational chal-
lenge.10 Is this cause to suggest that the book merely covers old ground in an area
that is already well traversed? No. The book does not seek to challenge the dom-
inance of autonomy nor seek to focus solely on it as a relational challenge.
McLean’s objective was to approach this project from a very specific angle and
to reconcile the relationship between autonomy, consent, and the law. Inevitably,
there is some crossover between the arguments expounded in this and other exist-
ing texts, but there are also many new arguments and novel interpretations which
have not been considered before. To conclude, this text will be of great interest to
lawyers, healthcare professionals, philosophers, and bioethicists. It is also a book
that is easily accessible to both undergraduate and post-graduate students. It will
be featuring on my undergraduate reading list in the future.

Rob Heywood
UEA Law School
University of East Anglia
doi:10.1093/medlaw/fwq033

10
See C Foster, Choosing Life, Choosing Death: The Tyranny of Autonomy in Medical
Ethics and Law (Hart Publishing, Oxford 2009); AR Maclean, Autonomy, Informed
Consent and Medical Law: A Relational Challenge (Cambridge University Press,
Cambridge 2009).