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Anger and Forgiveness"Are You There Alone?"10 Good Questions about Life and DeathA Casebook of Ethical Challenges in NeuropsychologyA Companion to BioethicsA Companion to BioethicsA Companion to GenethicsA Companion to GenethicsA Companion to Muslim EthicsA Cooperative SpeciesA Critique of the Moral Defense of VegetarianismA Decent LifeA Delicate BalanceA Fragile LifeA Life for a LifeA Life-Centered Approach to BioethicsA Matter of SecurityA Mirror Is for ReflectionA Mirror Is for ReflectionA Natural History of Human MoralityA Philosophical DiseaseA Practical Guide to Clinical Ethics ConsultingA Question of TrustA Sentimentalist Theory of the MindA Short Stay in SwitzerlandA Tapestry of ValuesA Very Bad WizardA World Without ValuesAction and ResponsibilityAction Theory, Rationality and CompulsionActs of ConscienceAddiction and ResponsibilityAddiction NeuroethicsAdvance Directives in Mental HealthAfter HarmAftermathAgainst AutonomyAgainst BioethicsAgainst HealthAgainst MarriageAgainst 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Controversies in Values and ScienceCutting to the CoreCyborg CitizenDamaged IdentitiesDeaf Identities in the MakingDeath Is That Man Taking NamesDebating ProcreationDebating Same-Sex MarriageDecision Making, Personhood and DementiaDecoding the Ethics CodeDefining DifferenceDefining Right and Wrong in Brain ScienceDefining the Beginning and End of LifeDelusions of GenderDementiaDemocracy in What State?Demons of the Modern WorldDescriptions and PrescriptionsDesert and VirtueDesire, Practical Reason, and the GoodDestructive Trends in Mental HealthDeveloping the VirtuesDid My Neurons Make Me Do It?Difference and IdentityDigital HemlockDigital SoulDignityDignityDisability BioethicsDisability, Difference, DiscriminationDiscrimination against the Mentally IllDisordered Personalities and CrimeDisorders of VolitionDisorientation and Moral LifeDivided Minds and Successive SelvesDoes Feminism Discriminate against Men?Does Torture Work?Doing HarmDouble Standards in Medical Research in Developing CountriesDown GirlDrugs and JusticeDuty and the BeastDworkin and His CriticsDying in the Twenty-First CenturyEarly WarningEconomics and Youth ViolenceEmbodied RhetoricsEmerging Conceptual, Ethical and Policy Issues in BionanotechnologyEmotional ReasonEmotions in the Moral LifeEmotions in the Moral LifeEmpathyEmpathy and Moral DevelopmentEmpathy and MoralityEmpirical Ethics in PsychiatryEncountering NatureEncountering the Sacred in PsychotherapyEngendering International HealthEnhancing EvolutionEnhancing Human CapacitiesEnoughEros and the GoodErotic InnocenceErotic MoralityEssays on Derek Parfit's On What MattersEssays on Free Will and Moral ResponsibilityEthical Choices in Contemporary MedicineEthical Conflicts in PsychologyEthical Dilemmas in PediatricsEthical Issues in Behavioral ResearchEthical Issues in Dementia CareEthical Issues in Forensic Mental Health ResearchEthical Issues in the New GeneticsEthical LifeEthical Reasoning for Mental Health ProfessionalsEthical TheoryEthical WillsEthically Challenged ProfessionsEthicsEthicsEthicsEthics and AnimalsEthics and ScienceEthics and the A PrioriEthics and the Discovery of the UnconsciousEthics and the Metaphysics of MedicineEthics at the CinemaEthics at the End of LifeEthics Beyond the LimitsEthics Case Book of the American Psychoanalytic AssociationEthics Done RightEthics ExpertiseEthics for EveryoneEthics for PsychologistsEthics for the New MillenniumEthics in CyberspaceEthics in Everyday PlacesEthics in Health CareEthics In Health Services ManagementEthics in Mental Health ResearchEthics in PracticeEthics in PsychiatryEthics in PsychologyEthics in Psychotherapy and CounselingEthics of PsychiatryEthics without OntologyEthics, Culture, and PsychiatryEthics, Sexual Orientation, and Choices about ChildrenEvaluating the Science and Ethics of Research on HumansEvilEvilEvil GenesEvil in Modern ThoughtEvil in Modern ThoughtEvolution, Gender, and RapeEvolutionary Ethics and Contemporary BiologyEvolutionary Psychology and ViolenceEvolved MoralityExperiments in EthicsExploding the Gene MythExploiting ChildhoodFacing Human SufferingFact and ValueFacts and ValuesFaking ItFalse-Memory Creation in Children and AdultsFat ShameFatal FreedomFellow CreaturesFellow-Feeling and the Moral LifeFeminism and Its DiscontentsFeminist Ethics and Social and Political PhilosophyFeminist TheoryFinal ExamFirst Do No HarmFirst, Do No HarmFlashpointFlesh WoundsForced to CareForgivenessForgivenessForgiveness and LoveForgiveness and ReconciliationForgiveness and RetributionForgiveness is Really StrangeFoucault and the Government of DisabilityFoundational Issues in Human Brain MappingFoundations of Forensic Mental Health AssessmentFree WillFree Will And Moral ResponsibilityFree Will and Reactive AttitudesFree Will, Agency, and Meaning in LifeFree?Freedom and ValueFreedom vs. InterventionFriendshipFrom Darwin to HitlerFrom Disgust to HumanityFrom Enlightenment to ReceptivityFrom Morality to Mental HealthFrom Silence to VoiceFrom Valuing to ValueFrontiers of JusticeGender in the MirrorGenetic PoliticsGenetic ProspectsGenetic ProspectsGenetics of Original SinGenetics of Original SinGenocide's AftermathGetting RealGluttonyGood WorkGoodness & AdviceGreedGroups in ConflictGrowing Up GirlGut FeminismHabilitation, Health, and AgencyHandbook for Health Care Ethics CommitteesHandbook of BioethicsHandbook of Children's RightsHandbook of PsychopathyHappinessHappiness and the Good LifeHappiness Is OverratedHard FeelingsHard LuckHardwired BehaviorHarmful ThoughtsHeal & ForgiveHealing PsychiatryHealth Care Ethics for PsychologistsHeterosyncraciesHistorical and Philosophical Perspectives on Biomedical EthicsHoly WarHookedHookedHow Can I Be Trusted?How Fascism WorksHow Propaganda WorksHow to Do Things with Pornography How to Make Opportunity EqualHow Universities Can Help Create a Wiser WorldHow We HopeHow We Think About DementiaHuman BondingHuman Dignity and Assisted DeathHuman Dignity and Assisted DeathHuman 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Posthuman FutureOut of EdenOut of Its MindOut of the ShadowsOverdosed AmericaOxford Handbook of Psychiatric EthicsOxford Studies in Normative EthicsOxford Studies in Normative Ethics, Volume 7Oxford Textbook of Philosophy of PsychiatryPassionate DeliberationPatient Autonomy and the Ethics of ResponsibilityPC, M.D.Perfecting VirtuePersonal AutonomyPersonal Autonomy in SocietyPersonal Identity and EthicsPersonalities on the PlatePersonhood and Health CarePersons, Humanity, and the Definition of DeathPerspectives On Health And Human RightsPharmaceutical FreedomPharmacracyPharmageddonPhilosophy and This Actual WorldPhilosophy of BiologyPhilosophy of Technology: The Technological ConditionPhysician-Assisted DyingPicturing DisabilityPilgrim at Tinker CreekPlaying God?Playing God?Political EmotionsPornlandPowerful MedicinesPractical Autonomy and BioethicsPractical EthicsPractical Ethics for PsychologistsPractical RulesPragmatic BioethicsPragmatic BioethicsPragmatic NeuroethicsPraise and BlamePreferences and Well-BeingPrimates and PhilosophersPro-Life, Pro-ChoiceProcreation and ParenthoodProfits Before People?Progress in BioethicsProperty in the BodyProzac As a Way of LifeProzac on the CouchPsychiatric Aspects of Justification, Excuse and Mitigation in Anglo-American Criminal Law Psychiatric EthicsPsychiatry and EmpirePsychological Concepts and Biological PsychiatryPsychology and Consumer CulturePsychology and LawPsychotropic Drug Prescriber's Survival GuidePublic Health LawPublic Health Law and EthicsPublic PhilosophyPunishing the Mentally IllPunishmentPursuits of WisdomPutting Morality Back Into PoliticsPutting on VirtueQuality of Life and Human DifferenceRaceRadical HopeRadical VirtuesRape Is RapeRe-creating MedicineRe-Engineering Philosophy for Limited BeingsReason's GriefReasonably ViciousReckoning With HomelessnessReconceiving Medical EthicsRecovery from SchizophreniaRedefining RapeRedesigning HumansReducing the Stigma of Mental IllnessReflections on Ethics and 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In Western countries, respect for patient autonomy is recognized as one of the most dominant ethical principles in healthcare ethics, and obtaining informed consent from the patient for healthcare treatment is understood as standard practice. Accordingly, we assume that the laws of these countries unequivocally support self-determination in healthcare. Sheila McLean has done a remarkable work in challenging what most of us have presumed to be the legal reality. In the introduction, she claims that while consent is believed to be the legal equivalent of autonomy, the relationship between the ethical concept of autonomy and the legal concept of consent is "deceptively nuanced and complex".
In the first three chapters, McLean elaborates on the ethical concept of autonomy and how the consent law relates to it. She begins by indicating that there is no consensus about the exact meaning of autonomy, which ranges from the individualistic account to the relational account. She, however, indicates that these two accounts of autonomy are not distinctively different because relational autonomy surely endorses the importance of self-determination, but restricts individual freedom only when consideration for others is necessary. She aims to clarify (1) the type of autonomy recognized by the consent law and (2) how it can be decoded into the legal set of rules. The law deems that adults are autonomous unless otherwise demonstrated. However, she points out a problem that being an autonomous person does not necessarily guarantee the decision made by that person is an autonomous one. The legal doctrine of consent upholds individualistic autonomy. For a decision to be deemed legally valid, it requires the provision of information, decisional capacity and voluntariness of the individual, and some evidence of understanding. Nonetheless, understanding or voluntariness is too complicated to be evaluated and ensured by law. Through the review of court decisions, the legal rules of consent appear to be far from the counterpart of the ethical concept of autonomy. Firstly, the law not only protects individual rights to self-determination, but also reflects public policy, and it seeks balance between competing interests. In healthcare decision making, relevant information to be provided to the patient is determined by an objective standard, i.e., what the reasonable person wants to know. Although healthcare decisions are highly personal and so is the ethical concept of autonomy, specific needs of a particular patient are unlikely to be considered in law. Secondly, the law has traditionally respected the opinion of healthcare professionals whose major concern is the patient well-being. This may imply that the law as well as medicine tends to prioritize beneficence. That is, the consent law does not exclusively protect the patient's right to self-determination, but rather protects both patients and healthcare professionals in the context of healthcare. Thus, McLean argues that the consent law, due to its goals and processes, functions inconsistently and only in a limited manner to protect individualistic autonomy or the patient-centered position.
In the subsequent four chapters, she illustrates contentious areas in healthcare to demonstrate the ambiguity and inconsistency of court decisions. The law supports different models of autonomy depending on the context. The law endorses rejection of life-sustaining treatment solely on the ground that the patient is legally competent, whereas it is not the case for seeking assistance with dying because the community interest of preserving human life is prioritized. She argues that while the distinction between omissions versus acts cannot be morally justified, the law is making such distinction for public policy purposes. Concerning pregnant women, consideration for others, i.e., the embryo or fetus, can significantly compromise the pregnant woman's autonomy. McLean presents American cases where pregnant women were arrested or received court orders due to their behavior that might harm the fetus, or British cases where they were forced to undergo obstetrical interventions for the well-being of the fetus. Genetics poses a unique issue, as the person's genetic information may be beneficial for the relatives or the partner to know. What should be the obligation of the clinician who tested the patient for genetic information? Privacy must be protected; however, the information could be crucial to others. McLean says that the law's approach is indecisive on this issue and neither model of autonomy seems to be dominantly applied. Through the descriptions in these specific areas, McLean persuasively depicts the inconsistency of the law regarding the kind of autonomy -- individualistic or relational -- it supports. In the last chapter on organ transplantation, living donation is presented as an example which may perhaps be endorsed either by individualistic or relational autonomy. Finally, she refers to the political and clinical pressure to increase the number of organ supply, which has led some countries to adopt a policy that presumes consent for cadaveric organ donation. Under this policy, the organ will be harvested unless otherwise expressed in advance. She argues that such policy must demonstrate clear evidence of the benefit it generates because it obviously diverts from the consent-based model which is valued by the current law. She also notes that the policy which upholds organ donation without explicit consent implies the ambivalence of the state and the law about autonomy itself.
By and large, McLean is convincing. However, there may be slight ambiguity in her arguments. While her discussions well demonstrate the inconsistency and hence the unpredictability of the law or court decisions regarding the type of autonomy being applied, we may wonder how her basic view -- that the difference between individualistic and relational autonomy is not fundamental, but rather artificial -- aligns with these discussions. It seems that her concern lies in the situation where the alleged difference between these two models may allow justification for the irrelevant focus on the interest of others including state policy. This, however, may have more to do with the law's goal to seek balance between competing interests and less with the type of autonomy it upholds. In contrast, the other point she makes -- that the consent law has no more than a limited relationship to any model of autonomy -- may carry more significance. If the consent law is not fully capable of ensuring the individual to make an autonomous decision, our society may lack practical means of respecting autonomy, which should be of serious concern. In sum, she provides us with an invaluable perspective on rethinking patient autonomy. This book will be provocative and interesting particularly to those involved in healthcare, law and bioethics.
© 2010 Kyoko Wada
Kyoko Wada, MD, anesthesiologist, MA in bioethics (Monash University), currently bioethics research fellow at the University of Western Ontario.