Benevolent Paternalism or a Clash of Values: Motherhood and Refusal of Medical Treatment in Ireland

13 Pages Posted: 3 Oct 2012

See all articles by Kay Wilson

Kay Wilson

Monash University

Penelope June Weller

Monash University - Faculty of Law; Royal Melbourne Institute of Technolog (RMIT University) - Graduate School of Business and Law

Date Written: 2011

Abstract

While a patient’s right to refuse medical treatment is well established in England and Ireland as a legal principle, Fitzpatrick provides an example of how “brittle” this right can be in practice, especially where a patient makes what seems like a morally repugnant decision to people who do not share the patient’s religious beliefs. The incapacity finding in Fitzpatrick helped to avoid: (i) the embarrassment (and liability to the hospital) of setting aside an ex parte order of the court to transfuse the patient without her consent; and (ii) creating a precedent on whether the baby’s rights to the care of his mother outweighed her rights to autonomy, bodily integrity and religious freedom. In doing so, the Court did not consider the broader social context or the possibility of injustice to the patient. While it could be argued that Fitzpatrick is an extreme case, the boundaries of the law are set by extreme cases. Time will tell whether Fitzpatrick is confined to its extraordinary facts and the extent to which it will shape law reform in Ireland and elsewhere in striking a balance between benevolent paternalism, clashing values and maternal autonomy.

Keywords: refusal of medical treatment, Fitzpatrick, religious beliefs, right to autonomy, bodily integrity

JEL Classification: K00, K10, K19, K20, K32, K39, K40, K49

Suggested Citation

Wilson, Kay and Weller, Penelope June and Weller, Penelope June, Benevolent Paternalism or a Clash of Values: Motherhood and Refusal of Medical Treatment in Ireland (2011). (2011) 21 Journal of Mental Health Law 74, Monash University Faculty of Law Legal Studies Research Paper No. 41, Available at SSRN: https://ssrn.com/abstract=2156041

Kay Wilson (Contact Author)

Monash University ( email )

23 Innovation Walk
Wellington Road
Clayton, Victoria 3800
Australia

Penelope June Weller

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

Royal Melbourne Institute of Technolog (RMIT University) - Graduate School of Business and Law ( email )

Melbourne
Australia
6139255710 (Phone)

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