Hamline University - School of Law; Queensland University of Technology - Australian Health Law Research Center; Saint Georges University; Alden March Bioethics Institute
January 1, 2010
American Journal of Bioethics, Vol. 10, No. 3, pp. 59-61, 2010
Jotkowitz and colleagues (AM. J. BIOETHICS, 2010) claim that the College of Physicians and Surgeons of Manitoba Guidelines 'represent a retreat from autonomy towards old fashioned paternalism.' This is descriptively false. Autonomy has developed solely as a negative right to be free from unwanted treatment. It has almost never been formally construed to give patients a positive right to demand nonindicated treatment. These guidelines are a clarification of the scope of autonomy, rather than any retreat from some positive rights that were previously recognized. Autonomy has long been and remains a very weighty principle – but it does not automatically trump other principles.
Still, Jotkowitz and colleagues are correct that the Golubchuk case is special because of the religious nature of the request for life-sustaining medical treatment. While even Jotkowitz and colleagues concede that such requests can be (and should be) overridden in some circumstances, they rightly argue that such unilateral action must be carefully circumscribed. Provider arguments for overriding must be more compelling in futility disputes where the treatment request is religiously motivated.
Pope, Thaddeus Mason, The Case of Samuel Golubchuk: The Dangers of Judicial Deference and Medical
Self-Regulation (January 1, 2010). American Journal of Bioethics, Vol. 10, No. 3, pp. 59-61, 2010. Available at SSRN: http://ssrn.com/abstract=2003520