Protecting Patients from Their Bad Decisions: Rebalancing Rights, Relationships and Risk
Emma Cave; Protecting Patients from their Bad Decisions: Rebalancing Rights, Relationships, and Risk, Medical Law Review, Volume 25, Issue 4, 1 November 2017, Pages 527–553, doi: 10.1093/medlaw/fww046
Posted: 1 Dec 2016 Last revised: 22 Nov 2017
Date Written: 2017
Patients have a right to autonomy that encompasses making medical decisions that others consider ‘bad’. The ambits of this right in law and clinical practice are explored in this article, which describes an expansion of welfare protections across different aspects of medical law and explores their justifications and implications. In England and Wales, the Mental Capacity Act 2005 sets out protections for those who fall within its definition of incapacity. Those who retain capacity are ostensibly free to make decisions others consider unwise. But the decisions of those with borderline capacity; those whose decisions conflict with the public interest in protecting the patient from harm; and those considered ‘vulnerable’ are, in circumstances explored in this article, susceptible to override. The article explores the effects of these developments on the relationship between patients’ autonomy rights and clinicians’ responsibilities.
Keywords: capacity, consent, vulnerability, necessity, paternalism, autonomy
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