Legislating to Give Effect to Precedent Autonomy: Comparative reflections on Legislative Incompetence

Abstract

This article considers the legislative responses to the perceived need to provide for the binding force of precedent autonomy in Austria, Germany and England. It reflects comparatively upon the impact of these responses in considering to what extent it is possible to make an anticipatory refusal of consent to medical treatment that will bind healthcare professionals, as opposed to being merely a factor to be considered in determining the patient's best interests or presumed will. It concludes that each of the three legislatures has introduced significant hurdles to the creation of a binding anticipatory decision, ensuring that medical discretion and the presumption in favour of life will be preserved in the majority of cases, and in so doing undermines the very concept of precedent autonomy.