1

Autonomy and the Law

Widely Used, Poorly Defined

 . 

Every human being of adult years and sound mind has a right to determine
what shall be done with his own body; and a surgeon who performs an
operation without his patient’s consent, commits an assault, for which he is
liable in damages.1
This court is a court of law, not of morals.2

Introduction
This book represents a broad conversation addressing the nature and
potential limitations of autonomy, as well as some approaches to over-
coming those limitations. Such a conversation is incomplete without an
exploration of autonomy at law, and any discussion of autonomy at law
must grow from a consideration of judicial conceptions of autonomy and
where these fit within the broader philosophical narrative. Autonomy at
law is broadly interpreted and hard to characterise and this raises the
question as to whether it is clearly understood at law.
Law is a discipline of language. Nuance and context can therefore
make a significant difference when considering the adoption of a concept
such as autonomy. Equally important in the conceptualisation of law is
the intertwining of rights, duties and responsibilities of individuals and
organisations and the need to balance conflict between different rights
and duties. It is unsurprising, therefore, that autonomy has entered the
legal lexicon and been hailed as either a fundamental right, an important
duty or a core principle.

1
Schloendorff v. The Society of the New York Hospital (1914) 211 NY 125, Cardozo J,
129–30.
2
Re A (Children) (Conjoined Twins: Surgical Separation) [2000] EWCA Civ 254, Ward
LJ, [4].

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The law is, however, a rule-based system, which means that the
apparent ‘fundamental right’ of autonomy can yield in the face of other,
stronger ‘laws’ or ‘principles’ such as the sanctity of life or the imperative
to protect the legally defined best interests of the child. This leads to the
important question of whether autonomy at law serves to protect the
individual from harm, serves to empower the individual to act as author
of their own story or is a mere term of art adopted by the judiciary?
Autonomy is addressed in many aspects of the law, from private
actions asserting the violation of a right through to such diverse areas
as criminal law, corporate regulation and family law. It is impossible to
cover this entire field; therefore, an appropriately narrow theme has been
selected and the present discussion will focus on consent to medical
treatment generally and, more specifically, the so-called doctrine of
informed consent.
Through a consideration of a variety of judicial discussions and schol-
arly discourse it will be demonstrated that, despite judicial protestations
to the contrary, autonomy at law is an uncertain ideal. It is, instead, a
poorly conceptualised term of art employed by the judiciary to support
conclusions that rest upon other, more complex and diverse
considerations. Or, as suggested by Huxtable, it is a façade behind which
there is a ‘construction [that] involves the use of more – and more
precise – tools’.3 This does not mean that the law fails to protect the
foundational concept of autonomy. Autonomy, however, is best served
when the law is focusing on other rights such as bodily integrity, freedom
from assault, ownership of property and privacy (to name but a few). All
of which, it could be argued, can be framed within the broader discussion
of autonomy but represent other interrelated rights, duties and interests.
The weakest protection of autonomy usually comes when members of
the judiciary emphatically state, ‘Autonomy dictates that . . .’.

Important Distinction: ‘Informed Consent’ Not Consent

Before considering this in depth, an important distinction must be
highlighted. When discussing ‘informed consent’ at law we are not
discussing the mere agreement (or not) to undergo medical treatment.
This form of consent is unproblematic and is situated in the specific area
of law referred to as ‘trespass’, that is, an intentional violation of a

3
R. Huxtable, ‘Autonomy, best interests and the public interest: treatment, non-treatment
and the values of medical law’, Medical Law Review, 22 (2014), 459–93, 460.

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personal right. As explained in Reibl v. Hughes, ‘actions of [trespass]
should be confined to cases where surgery or treatment has been per-
formed or given to which there has been no consent at all or where,
emergency situations aside, surgery or treatment has been performed or
given beyond that to which there was consent’.4 Therefore, at law ‘the
least touching of my person is a trespass’ and there is no need for there to
be intent to cause any harm.5 There is no need to establish that there has
been any harm caused. Indeed, the motivation for and material effect of
the ‘interference’ could be positive. Thus, a doctor who gives a life-saving
blood transfusion to a patient clearly refusing one on religious grounds
will have committed a trespass. Protection of bodily integrity and, there-
fore, a simply framed definition of autonomy as a right to personal
sovereignty, is clearly protected at this most basic level.
‘Informed consent’ in law, on the other hand, is concerned with the
quality of advice and information given to a patient prior to treatment. It
is this latter, more complex level of consent that will be the focus of the
discussion here. It will be asserted that this so-called protection of
autonomy, framed as it is in considerations of a doctor’s duty to provide
information is not, despite judicial assertions to the contrary, actually
about autonomy. Rather it is about professional standards of care and is
driven by the legal question of whether or not the doctor informed the
patient of all material information.6 The legal test of materiality –
whether or not the patient was given all relevant information that would
have had an impact on their decision-making process – is a well-framed
and clearly developed test. To assert, however, that it is operating to
protect autonomy fails to identify the nature of the enquiry that the court
is undertaking. Autonomy framed here is a mere gloss on the legal
enquiry. As Coggon explains, autonomy, here, serves to provide a ‘sheen
of consistency’,7 and does not explain the true nature of the legal enquiry,
which is whether or not the doctor met the expected standard of care in
their provision of information to the patient.

4
Reibl v. Hughes (1980) 114 DLR 1 at 10–11, Laskin CJC, this has been affirmed in the
Australian decision of Rogers v. Whitaker (1992) 175 CLR 479.
5
See, for example, Wilson v. Pringle [1987] QB 237 and Coffey v. State of Queensland [2012]
QSC 186.
6
Test of materiality emerged from the seminal case of Rogers v. Whitaker (1992) 75 CLR
479.
7
J. Coggon, ‘Varied and principled understandings of autonomy in English law: justifiable
inconsistency or blinkered moralism?’ Health Care Analysis, 15 (2007), 235–55, 247.

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The challenge in this chapter is not to the nature of the test of a
doctor’s duty to inform. Rather, the challenge is to the judicial assertions
of protection of autonomy. The root of the problem potentially lies in the
nature of the judicial process and the judiciary adopting language poorly
suited to the role they are called upon to fulfil. The courts are, after all, as
stated in the second introductory quote, courts of law and not morality.
Consequently, reference to complex philosophical concepts such as
autonomy should be avoided. It is important to emphasise at the outset
that it is this adoption of a poorly articulated concept of autonomy that is
being challenged here. The existence of a patient’s right to information is
not open to challenge: information empowers patients in the decision-
making process.8 What is challenged is the judicial practice in the pre-
treatment advice (or informed consent) cases of protecting the right to
information solely through a consideration of the duty to provide it, at
the same time as asserting adherence to a poorly articulated concept of
autonomy. The personal right to bodily integrity and to exercise sover-
eignty over one’s body does not play a role in the application of the legal
test of material information. In practice, the focus remains on what the
doctor ought to have told the patient in order to meet the appropriate
standard of care. The nature of the right to information does not play an
overt role in the judicial process beyond an initial nodding acquaintance
with the rationale of autonomy (or self-determination). In short, the test,
as it stands, ‘concentrates on descriptions of duties rather than rights’.9
Any reference to autonomy by the courts is purely procedural and fails to
engage with the nuanced philosophical discussion and debate around the
rich concept of autonomy. The judiciary is not equipped to engage with
the complex considerations that should underpin any discussion of
autonomy and, therefore, would be better served to cease adopting it as
a touchstone. Judicial process should, instead, rest on clearly defined and
well understood legal terms.

8
The test for the professional standard of care is most often referred to as one of
materiality – that is, would the information given to the patient be material to them,
would it make a difference to their decision-making process, see Rogers v. Whitaker
(1992) 175 CLR 479 and, more recently, Montgomery v. Lanarkshire Health Board [2015]
UKSC 11.
9
S. A. M. McLean, A Patient’s Right to Know: Information Disclosure, the Doctor and the
Law (Aldershot: Dartmouth Publishing Company, 1989), 80.

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‘Informed Consent’ and Autonomy
A preliminary step in understanding – and challenging – the adoption of
respect for autonomy as a foundational principle in the so-called
informed consent decisions is to identify how, and when, the courts
adopt the term autonomy. As indicated above, autonomy is frequently
referred to, highlighted and emphasised throughout judicial consider-
ations of problems involving ‘informed consent’ to medical treatment.
This characterisation of autonomy as a fundamental principle was
present in the earliest decisions regarding advice prior to treatment10
and it has been suggested that the ‘purpose of [the rules about consent] is
to permit the patient the continued exercise of self-determination or
autonomy’.11 More broadly, protection of the autonomous individual
has been described as ‘the dominant rhetorical value in . . . medical law
and ethics’,12 and autonomy, in the context of bioethics, has been
described as ‘something of a religion’.13
Thus, autonomy is clearly a ‘fundamental value’ in discussions involv-
ing pre-treatment advice,14 yet rarely is there any attempt to provide a
purpose-specific definition of the term. The judicial ruminations on the
level of information that the autonomous individual ought to receive do
not extend to a consideration of who, or what, exactly the autonomous
individual is. The judicial enquiry shifts from rights of the patient to the
duty of the doctor.
While it may be correctly argued that rights of one party are met by the
appropriate exercise of the duty of another, the next stage of the enquiry –
causation – demonstrates that the right to make an informed choice is
relegated to a subordinate position. The ‘informed consent’ cases sit
within the negligence framework. Therefore, once it is determined that
the doctor failed to provide appropriate material information (failed to
meet the standard of care), the court must determine whether that failure
caused the legally defined harm. And that harm is not the denial of
information, rather it is the manifestation of a physical injury.

10
Schloendorff v. The Society of the New York Hospital (1914) 211 NY 125 referred to
autonomy.
11
McLean, A Patient’s Right to Know, 80.
12
R. B. Dworkin, ‘Medical law and ethics in the post-autonomy age’, Indiana Law Journal,
68 (1992–1993), 727–42, 727.
13
Coggon, ‘Varied and principled understandings of autonomy in English law’, 236.
14
McLean, A Patient’s Right to Know, 90.

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The causation stage of the enquiry is the point at which many of the
‘informed consent’ cases fail. At the base of the causation enquiry is the
fact that the law ‘takes no cognisance of carelessness in the abstract’,15
meaning that liability will not be imposed unless the duty and breach can
be linked to the loss or damage suffered. The identification of a duty to
inform (and a corresponding failure to do so) is only the beginning of the
process. A thread of causation must lead from that failure directly to the
patient’s loss: did the failure to inform make a material difference to the
outcome? While the enquiry begins with the ideal of sovereignty,
expressed as autonomy, it shifts focus and at the causation stage the
courts seek to link the failure to provide sufficient advice with a logically
irrelevant harm. As a result, the causative link is rarely found.
In asking the question of whether or not the patient would have
consented to the treatment, the courts divert the enquiry away from
the right to information towards the idea of consent and concepts
ordinarily aligned with trespass. In focusing on the issue of whether or
not the patient would have proceeded with the treatment if they had been
informed of this risk, the courts are, quite simply, asking the wrong
question. This point is best explained through example. The decision of
Smith v. Barking, Havering and Brentwood Health Authority [1994]
5 Med LR 285 serves this purpose well and will therefore be considered
in some detail.
The decision in this case also followed traditional causation principles
and found in favour of the defendant health authority. The essence of the
causation problem in ‘informed consent’ cases was nicely summarised by
Hutchinson J. when he noted that he felt a great deal of sympathy for the
plaintiff as she was expected to answer hypothetical questions designed to
discover what she would have said ‘had she been asked questions that she
was not asked at a time when she did not know what she now knows’.16
The plaintiff, Ms Smith, had been ill as a child when she had a cyst
drained. There followed a long recovery period after which her symp-
toms abated and she lived a relatively normal life until, at the age of 18,
her condition again began to deteriorate. As her health declined, it
became clear that the cyst had recurred and that if she did not receive
treatment, she would at first be confined to a wheelchair and within six
months, tetraplegia would develop. The court took care to note that

15
Donoghue v. Stevenson [1932] AC 562, 619 (Lord McMillan).
16
Smith v. Barking, Havering and Brentwood Health Authority [1994] 5 Med LR 285, 289.

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despite skilled surgical intervention the procedure was unsuccessful, and
the plaintiff suffered immediate and permanent tetraplegia.17
The action turned on the failure of Mr Fairburn (the surgeon) to warn
her of the risks which all agreed were inherent in the operation and his
failure to afford her the opportunity to reach an informed decision as to
whether or not to proceed with the treatment.18 The patient/plaintiff
argued that she had been denied the right to exercise free choice (usually
a key component of the exercise of autonomy) and asserted that it was
this denial that was the true loss. But the court focused on the
physical harm.
In presenting his findings, the judge provided some commentary on
the behaviour of the surgeon, noting that the surgeon was paternalistic in
his approach and that he ought to have informed the plaintiff of the risks.
The reality of the situation (which was not conveyed to the plaintiff ) was
that even if the surgery were a clear success, it would only ever have
provided a brief respite from the condition and, at best, a postponement
of tetraplegia. The outcome was inevitable; it was the timing that was the
issue. The plaintiff was completely unaware of the realities of her condi-
tion and as a result of the over-protective approach of her physician,
undertook the surgical procedure believing that there was a good chance
of complete cure.
Despite his concern about the approach of the physician, Hutchinson
J. emphasised that it was not the main issue before the court. The only
significant issue in his view was whether the plaintiff, had she been given
the full advice, would have decided against the operation.19
In reaching a conclusion, the judge explored the broader questions of
what would be reasonable in the circumstances. He considered the
particular plaintiff and recognised that she found it extremely difficult
to determine what she would have done if she had been aware of the
risks. A significant consideration was the fact that a probable delay of
tetraplegia was a possibility that may well have made the risk worth
taking. This was a decision that turned on the facts before the court and,
beyond a mild scolding of the physician, there was no evidence of
imposition of external values or attempts to determine what was ‘just’

17
Ibid., 286–7.
18
Ibid., 287.
19
Ibid., 288.

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or redress any violation of rights. It was, as His Honour explained, a
situation of possibilities and probabilities.20
It is illustrative to note the description given by Hutchinson J. of the
internal conversation undertaken by a patient when confronted with
difficult choices such as these. In this instance he simplified the dialogue
and suggested that if she had been in possession of the full information,
reflection
. . . would have led a reasonable patient to say to herself: “Well, it seems
I’m going to be paralysed anyway in a very short time. This operation
gives me a reasonable chance of avoiding that condition perhaps for a few
years. True, there is a real risk that the operation will not be successful and
I’ll then be paralysed even sooner but the possible benefits clearly consid-
erably outweigh the possible detriment and the chance is one well worth
taking.”21

We see here the judge, in a somewhat superficial manner, acknowledging

the very process that has been denied to the patient. If she had indeed
been able to conduct this internal conversation, then she would have
been aware of all of the options open to her: the choice would have been a
truly informed one. It is the denial of information that divests the choice
of meaning, and it is this divesting of meaning that is the true loss
sustained by the plaintiff, and the causative link is clear and
unproblematic. With the judicial gaze squarely fixed on the manifestation
of a different, unrelated harm, the enquiry shifts entirely from the ideal of
protection of individual rights and becomes a generalised one, focusing
on the performance of a duty of care and not the infringement of the
right that the law purports to protect.
This was explained by Dworkin in the following terms:
Informed consent cause of action does nothing to promote or protect
patient autonomy . . . many features of the cause of action lead to its lack
of utility. The law is forced to go at the entire enquiry backwards. The
question the law wants to answer is whether the patient had adequate
information to autonomously exercise his will. In other words, what was
on the patient’s mind? However the law does not ask what was in the
patient’s mind. Instead it asks what the doctor did. Did the doctor tell the
patient enough?

20
Ibid., 292.
21
Ibid.

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It is easy to predict that law that must be done backwards is not going to
work out very well.22
Thus, the theory of ‘informed consent’ is apparently grounded in the
ideal of autonomy, but the concept itself is neither defined nor protected.
The law is a creature of definition and linguistic subtleties. Indeed, many
legal decisions turn on the definition of specific words or phrases. It is
therefore curious that the central consideration of the doctrine of
‘informed consent’ is so ill-defined. It is of course important to remember
that the role of the judge is to interpret and apply the law, and as such, it
would perhaps be inappropriate for judicial consideration of medical
advice to include an in-depth exploration of abstract notions such as
autonomy. Indeed, such an exploration might well draw criticism that
judges are ‘employed to judge the law and not questions of ethics’.23
The legal doctrine of ‘informed consent’ thus rests upon an opaque
foundation. The legal effect of the avoidance of the ‘full theoretical
rigour’ of autonomy is that ‘potentially the courts will find themselves
defending a concept of unspecific scope or meaning’.24 Some critics have
gone even further and suggested that it is ‘possible for judges to use the
equivocal nature of the concept [of autonomy] to achieve outcomes that
they consider to be morally desirable . . . rather than simply to apply a
single concept to comparable legal questions’.25 The absence of a clear
definition is, therefore, problematic, and if the doctrine of ‘informed
consent’ is to provide meaningful protection, then the character sitting
at its heart – the autonomous individual – must be defined and clearly
enunciated.
The redefining of informed consent is, however, a discussion for
another day. Here it is sufficient to challenge the doctrine and suggest
it needs review. What is, however, open for further consideration is the
‘non-negotiable axiom’ that is respect for autonomy.26 As suggested
above, it is a term consistently employed but rarely explained by the
courts. At times the view appears to be that respect for autonomy serves
as a shield to protect individuals from unwanted interference (as in
trespass). In other circumstances, it appears to be a form of patient

22
R. B. Dworkin, ‘Getting what we should from doctors: rethinking patient autonomy and
the doctor–patient relationship’, Health Matrix, 13 (2003), 235–96, 282.
23
Coggon, ‘Varied and principled understandings of autonomy in English law’, 236.
24
Ibid., 238.
25
Ibid., 236.
26
C. Foster, ‘Autonomy in the medico-legal courtroom: a principle fit for purpose?’ Medical
Law Review, 22 (2013), 48–63, 61.

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empowerment, enabling the patient to assert certain rights and, perhaps
provoke, the duties of doctors (as in informed consent). I would suggest,
however, that it is effectively neither of these. It merely represents a
particular approach to sometimes difficult questions.

Autonomy: Liberty or Obligation?

A persuasive view of the role of autonomy has been presented by
Huxtable when he described autonomy, along with best interests, as
essentially analytic tools with a construction going on behind the façade
that involves the use of other – more precise – tools that rest on
normative (specifically ethical) commitments.27 There are, however,
some common themes in the judicial characterisation of autonomy, with
it emerging as both liberty and obligation. Each of these will be con-
sidered in turn.

Autonomy as Liberty
The predominant description of autonomy is that it represents a freedom
to act as one wishes and represents a liberty to express and pursue
individual preferences. Often, judges will use the terms autonomy and
self-determination as synonyms, giving the concept of autonomy a shal-
low meaning of little more than a freedom to act and either consent to or
refuse medical treatment. As explained by French, Chief Justice of the
Australian High Court, ‘it may be said that autonomy is imprecise, if only
because it will often imply some notion of voluntary action or freedom of
choice’.28 This is most often expressed in positive terms: the right to
choose is a freedom that should be both recognised and supported by the
courts. Consider, for example:
Where a natural person is not under any disability, that person has a right
to choose his own fate. He is constrained in so far as his choice may affect
others, society or the body politic. But, so far as he himself is concerned,
he is entitled to choose.29

This is a thin version of autonomy. It implies a right to determine the

direction of medical treatment yet clearly refers to external constraints

27
Huxtable, ‘Autonomy, best interests and the public interest’, 460.
28
Stuart v. Kirkland-Veenstra [2009] HCA 15, [89], French CJ.
29
Commissioner of Police for the Metropolis v. Reeves [2000] AC 360, Lord Hobhouse, 394.

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that would limit the right to choose: impact on others, societal con-
straints and ‘the body politic’. It is a constrained version of autonomy,
lacking depth and limited by external considerations. The freedom to
choose is limited to treatments identified by the doctor and does not
extend to situations where perhaps the courts disapprove of either the
individual or their choices. Coggon highlighted the limitations to the
‘liberty’ view of autonomy and suggested that on this view ‘autonomy is
paramount, it is a “fundamental rule of law” unless of course we disagree
with the moral framework of the patient or we don’t like them’.30 The
examples he uses to support this argument are persuasive – R v. Collins
and Anor; ex Parte Brady (2000) 58 BMLR 173 and In re W (2002)
WL32068016. Both involved prisoners refusing specific medical inter-
ventions. Their requests were denied and their liberty to choose
constrained.
The court in R v. Collins openly addressed the role of other values and
considerations that can act to limit autonomy:
[I]t would seem to me a matter of deep regret if the law has developed to a
point in this area where the rights of a patient count for everything and
other ethical values and institutional integrity account for nothing.31

A similar response to behaviours that are not accepted as appropriate

is seen in the judicial rejection of consent to sado-masochistic activities.
In R v. Brown [1994] AC 212, Lord Templeman, who had previously
endorsed the significance of autonomy in consenting to bodily contact in
the context of medical treatment,32 described the plea of a defence of
consent based upon the liberty of choice version of autonomy as ‘a
slogan’ and emphasised the need to consider consent as a defence in
these circumstances through the context of policy and public interest.
Therefore, when consenting to bodily contact, the primacy of autonomy
operates so long as the court approves of the nature of the contact (and,
to a certain extent, the values of the one giving the consent). Bodily
integrity is protected, so long as it is appropriate bodily integrity.
It is also important to recognise that the liberty of autonomy is
expressed in terms of determining what is or is not done to one’s body:
a freedom to consent to or refuse medical treatment. This is only effective

30
Coggon, ‘Varied and principled understandings of autonomy in English law’, 250.
31
R v. Collins and Anor; ex Parte Brady (2000) 58 BMLR 173, as cited by Coggon, ibid.
32
See, for example, his Lordship’s comments in Sidaway v. Board of Governors of Bethlehem
Royal Hospital [1985] 1 All ER 643, 666.

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in the context of offered medical treatment and does not extend to the
identification of possible treatments and demand for receipt of that
treatment. As explained in Burke v. GMC [2005] EWCA Civ 1003,
‘autonomy and self-determination do not entitle the patient to insist on
receiving a particular medical treatment, regardless of the nature of the
treatment’ [31]. Autonomy as liberty therefore operates within con-
straints and is influenced by judicial preferences and medical opinion.
Therefore, while autonomy as applied by the law can broadly be
characterised as liberty, it is not an unfettered liberty and is clearly
limited by broader considerations. Autonomy can be overridden by a
more clearly defined value or principle (such as institutional authority
and integrity or what can be defined as a societal harm, such as accept-
ance of sado-masochistic behaviour of which the court disapproves).
Additionally, autonomy can be overridden where the court determines
that to do so would be in the patient’s best interests or, in some
circumstances, where medical opinion determines that it would be
appropriate to do so. Autonomy as liberty is best framed as a ‘freedom
to choose, unless . . .’.

Autonomy as an Obligation
The flipside of liberty to exercise choice is the obligation to choose. Some
have argued that the idol of autonomy at law has become a positive
obligation that in turn isolates the patient and leaves them without
appropriate support networks. As explained by Mendelson,
The modern law has been so zealous to secure the individual a right to
self-determination that it has lost sight of the wider humanitarian consid-
erations and compassionate principles that play an important part in
protecting the vulnerable and the depressed and the disabled.33

Others argue that there is too much focus on what patients should
want as opposed to what they do want with the reality being that, for
some patients, autonomy is a burden. It has been suggested that the
reality is that the cognitive processes of patients with serious illness are
often impaired. Consider for example the question of the terminally ill
patient who is tired, who no longer wants to engage with their illness and

33
D. Mendelson, ‘Historical evolution and modern implications of concepts of consent to,
and refusal of medical treatment in the law of trespass’, Journal of Legal Medicine, 17
(1996), 1–71, 30.

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wishes to abrogate their decision-making to someone else, perhaps the
doctor who they view as having the knowledge and skills appropriate
to the making of measured medical decisions. Strict application of a
law that embraces the primacy of autonomy as an obligation does not
support such a shifting of authority. Foster, for example, discussed
the ‘force feeding of information’ and refers to the work of Onora
O’Neill who argues that autonomy is well down patients’ own lists of
priorities and their wish to simply state ‘you know best doctor: I trust
you’.34 This view of autonomy as it operates at law is in direct contrast
to the ideal of liberty outlined above, to willingly hand over decision-
making authority under the liberty model is a valid exercise of autono-
mous choice. The patient has been free to express a preference,
and that preference is to allow someone else to make a decision on
their behalf.
This obligatory autonomy also serves to isolate the patient. We see
patients ‘abandoned’ to their fate and being forced into ‘isolational
independence’.35 This view of autonomy is also inconsistent with the
doctors’ professional guidelines, which refer to the doctor–patient rela-
tionship as one of a partnership in the decision-making process,36 and
reflects an unimaginative doctrinal application of the concept of
autonomy. Such a position is perhaps a logical end result of the law
attempting to embrace a philosophical concept and make it a creature
of law, which is, after all, a doctrine that must be applied with consist-
ency. When dealing with a concept such as autonomy that is, at its
heart, one that embraces complexities represented by individual differ-
ences, the law is a potentially blunt instrument and we have these
apparently irreconcilable characterisations of autonomy: liberty and
obligation.

34
Foster, ‘Autonomy in the medico-legal courtroom’, 50.
35
McLean, A Patient’s Right to Know, 328.
36
See, for example, in Australia, ‘Good Medical Practice: a code of conduct for doctors’,
Medical Board of Australia, 3.2 ‘Doctor–Patient Partnership’, www.medicalboard.gov.au/
Codes-Guidelines-Policies/Code-of-conduct.aspx: ‘Good medical practice is patient-
centred. It involves doctors understanding that each patient is unique, and working in
partnership with their patients’. And, in the United Kingdom, ‘Good Medical Practice:
the duties of a doctor registered with the GMC’, General Medical Council, www.gmc-uk
.org/ethical-guidance/ethical-guidance-for-doctors/good-medical-practice, which stipu-
lates that the doctor must work in partnership with their patient.

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   . 
Autonomy and the Law: A Fiction?
This somewhat brief consideration of autonomy and the law serves to
highlight the limitations of the law when it seeks to protect a philosoph-
ical principle. While autonomy deals with individual rights and interests,
it is best characterised within a broader social context. Without that
context it becomes meaningless.37 The legal conception of autonomy is
adapted to meet individual needs of the specific circumstances and
conflict; it lacks consistency in either substance or application. One could
perhaps describe the legal conception of autonomy as an idol, something
that we must all kneel to but is lacking in any true substance or meaning.
If autonomy is given a seemingly primary role in the law but is poorly
articulated, the law can in effect only pay lip service to autonomy. As a
consequence, questions can be raised about whether the deeper principle
of autonomy is really being protected. An example of this can be found in
the ‘informed consent’ decisions where the focus is on materiality of
information and the nature of the information given to patients and
conclusions are reached on characteristics of the decision-making pro-
cess unrelated to autonomy.38 The enquiry is all about the behaviour of
the doctor; it focuses on professional standards. While there is some
consideration on what would be relevant to the patient, this often stops
short of actually encouraging, supporting or empowering the patient to
make an autonomous decision. Concern about the provision of infor-
mation does not consider whether or not the patient actually understands
the information.39 Or, as McLean asserts, true exercise of autonomy
requires knowledge not information. To facilitate this, she argues that
there should be a duty to encourage (and one could extrapolate support)
understanding, something that is currently missing from the legal test.40
The existing test is therefore one of whether the doctor provided suffi-
cient information; the actual process of decision-making and depth of
understanding are absent from the enquiry.
At law, therefore, autonomy lacks depth and true meaning. The focus
is too much on who makes the decision as opposed to the decision-
making process, or the quality of the decision. Indeed, courts have

37
McLean, A Patient’s Right to Know, 328.
38
This was demonstrated in the above discussion about the role of causation and the
example of Smith v. Barking, Havering and Brentwood Health Authority.
39
This argument is explored in some detail by J. Coggon and J. Miola, ‘Autonomy, liberty
and medical decision-making’, Cambridge Law Journal, 70 (2011), 523–47.
40
McLean, A Patient’s Right to Know, 326.

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  ,   
specifically explained the so-called right to choose as a mere reflection of
the doctor’s duty. For example, in Burke [2005] EWCA Civ 1003, [57]:
. . . in truth, the right to choose is no more than a reflection of the fact that
it is the doctor’s duty to provide a treatment that he considers to be in the
interests of the patient and that the patient is prepared to accept.

Autonomy at law (in the context of consent to medical treatment) is,

therefore, poorly framed and inconsistent in its application, and there are
gaps identified in the literature including failure to ensure or support
patient understanding and a tendency to shut down meaningful dialogue.
The exercise of autonomy, as explained by McLean,41 is necessarily
social. It is an interactive process involving an exchange of information
and a process of reaching a decision. Yet the current ‘legal protection’
focusing on the information given and a right to choose denies this and
makes autonomy a single action, not a process of choosing and discus-
sion. It removes the dialogue, the empowerment and the understanding
from the autonomy paradigm. The question then is, how to address
this gap?

Conclusion: Remove Autonomy from the Judicial Language

The common starting point of decisions in the context of ‘informed
consent’ is labelled as respect for autonomy. Yet, the focus of the judicial
enquiry is on the doctor’s behaviour and the view that ‘to obtain a
morally valid consent’ there must be an appropriate provision of infor-
mation.42 There is a mismatch between the ideal of autonomy and true
nature of the judicial interrogation of dispute. The traditional position of
informed consent, hinging upon the notion of autonomy, is widely
recognised,43 as are the difficulties often encountered by the courts when
they have sought to adhere to this apparently foundational premise. The
various judicial appeals to autonomy have been described as ‘blundering’

41
Ibid., 328.
42
G. P. Smith, ‘The vagaries of informed consent’, Indiana Health Law Review, 1 (2004),
111–29, 112.
43
For example, A. D. Burnett III, ‘Suturing the loophole: informed consent as a requirement
for procedures not enumerated in Pennsylvania’s Medical Informed Consent Statute’,
Penn State Law Review, 108 (2004), 1249–71, 1263, K. M. Boos and E. J. Boos, ‘At the
intersection of law and morality: a descriptive sociology of the effectiveness of informed
consent law’, Journal of Law in Society, 5 (2004), 457–500, 469 and B. L. Atwell, ‘The
modern age of informed consent’, University of Richmond Law Review, 40 (2006),
591–611, 594.

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   . 
and ‘confused’,44 clearly reflecting the practical difficulty of uniform
application of a concept that is not uniformly defined.45 The problem
of focusing on the mechanics of information giving without testing
patient understanding has also been highlighted.46 This gap between
information and understanding poses an obstacle to truly informed
decision-making and, therefore, to assertions of protection of autonomy.
The enquiry is primarily guided by considerations of professional stand-
ards, as opposed to patient needs and rights.
Given the gaps outlined above, perhaps the best approach is to simply
remove the language of autonomy from the judicial toolkit. This is not to
assert that the basic right of freedom to choose is overlooked, merely that
the ‘gloss’ or as Coggon labelled it, ‘sheen’ of autonomy be removed. This
is neither a radical nor new recommendation. Perhaps it is best to
conclude this discussion with recommendations from the High Court
of Australia in 1992:
In this context, nothing is to be gained by reiterating the expressions used
in American authorities, such as ‘the patient’s right of self-determination’
or even the oft-used and somewhat amorphous phrase ‘informed con-
sent’. The right of self-determination is an expression which is, perhaps,
suitable to cases where the issue is whether a person has agreed to the
general surgical procedure or treatment, but is of little assistance in the
balancing process that is involved in the determination of whether there
has been a breach of the duty of disclosure. Likewise, the phrase ‘informed
consent’ is apt to mislead as it suggests a test of the validity of a patient’s
consent.47

In short, identify and apply foundational principles, apply basic rights

and draw the true considerations to the forefront, avoiding labels that
potentially mask the true motivations behind legal decisions.

44
R. R. Faden and T. L. Beauchamp (with Nancy King), A History and Theory of Informed
Consent (New York: Oxford University Press, 1986), 141.
45
Boos and Boos, ‘At the intersection of law and morality’, 469, for example, highlights the
point that as the concept of autonomy is variously defined, it creates an uncertain basis
upon which to rest a foundational doctrine.
46
C. J. Jones, ‘Autonomy and informed consent in medical decision-making: toward a new
self-fulfilling prophecy’. Washington and Lee Law Review, 47 (1990), 379–430, 392.
47
Rogers v. Whitaker (1992) 175 CLR 479, Mason CJ, Brennan, Dawson, Toohey and
McHugh JJ, [15]. It is worth noting here that the terms autonomy and self-determination
have been used interchangeably by the judiciary in the discussions around informed
consent.

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