Consent,Autonomy and the Infantilised Patient

Abstract

In this article we examine a particular aspect of the doctor-patient relationship — that of consent to treatment procedures — from three perspectives: ethics, sociology of medicine, and the Common Law. The legal deliberation and judgments are considered within the first two perspectives. Ethics provide us with ideal standards such as personal autonomy or the sanctity of life, whereas the sociological perspective focuses on the actuality of the doctor-patient relationship in terms of knowledge and mystification or power and dependence.

In our analysis of the cases, including a spate of recent decisions, we note how the rhetoric of patient autonomy in the leading House of Lords cases has not followed through into the later crisis-handling judgments. We argue that the practical model for these decisions is not the rhetoric of autonomy but the prerogative jurisdiction of wardship: the infantilised patient. We argue that there is an aspect of professional collusion here between lawyers and doctors, which exemplifies much of the sociological literature as well as the individual constituted as subject, rather than citizen, in English jurisprudence.

We suggest a number of reforms for the situation we have criticised.