Introduction
"L’homme est condamné à être libre"
"Man is condemned to be free"
This article is
written as a paean to human autonomy. Life is about making choices. Sometimes
we choose correctly; sometimes we choose wrongly; sometimes our choices are motivated
by self-interest; sometimes by altruism; sometimes these motivations coincide. The
point is we cannot live our lives without making choices.
For some, this
radical freedom is uncomfortable. The price of this freedom is very high. We
cannot choose not to make choices, because not choosing is a choice. We are
condemned to be free. If we have no choice but to choose, it follows that we
must be responsible for the consequences of the choices we make. And this is
the concept of human autonomy. Our criminal law is predicated on human
autonomy. Should we choose to break the law; we must be prepared to accept the
consequences of our actions.
The corollary of
having to accept the consequences of our actions is that we should not be
compelled to take actions that we do not wish to take – or indeed to have
actions forced upon us. It is in the
realm of medical care that autonomy plays a significant role. The position was
explained succinctly by Cardozo J in the American case of Schloendorff v New York Hospital in 1914.
“Every human
being of adult years and sound mind has a right to determine what shall be done
with his own body; and a surgeon who performs an operation without his
patient's consent, commits an assault, for which he is liable in damages.”
The Judge continued
“This is true
except in cases of emergency where the patient is unconscious and where it is
necessary to operate before consent can be obtained.”
There are,
however, limits on autonomy. My autonomy to act cannot illegitimately interfere
with your autonomy to act. And that is why we have laws. Is my autonomy to
refuse medical treatment completely unfettered? This question was brought into
sharp relief in the case of Re MB 1997.
MB was 40 weeks’ pregnant and required a caesarean section. She refused because
of a needle phobia. The Court of Appeal decided that the operation could be
carried out because MB was not competent to decide. However, had she been so
competent, Butler-Sloss LJ explained:
“A competent woman who has the
capacity to decide may, for religious reasons, other reasons, for rational or
irrational reasons or for no reason at all, choose not to have medical
intervention, even though the consequence may be the death or serious handicap
of the child she bears, or her own death. In that event the courts do not have
the jurisdiction to declare medical intervention lawful and the question of her
own best interests objectively considered, does not arise.”
Where,
then, lie the limits of autonomy?
The Limits of Autonomy
"The only purpose
for which power can be rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others."
You
are the author of your life story and no editor’s pen should make any
corrections to your text. There should be no unofficial biographies of your
life. Only those invited to help tell your story are allowed. What goes for you;
goes for others. Put simply, how you choose to live your life is entirely up to
you – well almost. So long as your choices cause no harm to anyone else; you should
be free to do as you please.
I
may not agree with how you live your life. Your choices may be morally repugnant
to me, but they are your choices as to how you live your life. Your beliefs and
opinions may be offensive to me and others, but you choose how to live your
life. So long as you cause no harm to me or others, you choose the life you
want to live. The challenging question is what constitutes harm to others, but I
shall not pursue that here.
Human
autonomy has a fine pedigree. John Stuart Mill was one of its most eloquent proponents.
Each human being is unique; uniformity is bad. Human flourishing is to be
encouraged; we must shape our lives not have them shaped for us. Ronald
Dworkin, in his work Life’s Dominion: an
Argument about Abortion, Euthanasia and Individual Freedom puts things
quite graphically: We
should “…allow someone to choose death over radical amputation or a blood
transfusion, if that is his [sic]
informed wish, because we acknowledge his right to a life structured by his own
values.”
It would be remiss
to speak of autonomy without making some reference to its opposite: paternalism
– the view that, in a medical context, medical expertise knows best. I have to
acknowledge that paternalism has its supporters: I am not one. I should endorse
the view of Joel Feinberg who said that those who have been subjected to
paternalistic interference feel “…violated, invaded, belittled”.
The Mental Capacity Act 2005
The Mental
Capacity Act 2005 (the Act) came into force in 2007. There is very little that
is new in the Act; it is, very much, a restatement of the position that prevailed at common law. Take a look at the statement from Cardozo J above.
Although this statement was made in an American case, there is no difference
between the position as stated by Cardozo J and the position in England. The
foundation stone of the Act is that of human autonomy, a concept that has always
sat at the high table of English legal principles.
The Act is
underpinned by five principles stated in section 1. The most important of these
principles is a presumption in favour of capacity. Section 1 (2) states that “A person must be assumed to have capacity unless
it is established that he lacks capacity”. This a statutory recognition of the
central position that human autonomy holds in English law, and when it comes to
medical treatment – for it is in this sphere that the presumption will,
perhaps, have its most important application – it is a confirmation in the
words of John Stuart Mill that “over his [sic] own body and mind, the individual
is sovereign.”
Capacity must not be seen
as an all or nothing concept. Indeed, the second and third principles of section
1 of the Act make it clear that capacity exists on a spectrum.
“A
person is not to be treated as unable to make a decision unless all practicable
steps to help him to do so have been taken without success.”
“A
person is not to be treated as unable to make a decision merely because he
makes an unwise decision.”
Capacity is time specific
and decision specific. You may be able to make a decision today, but not
tomorrow. You may be able to make a decision today, but struggle tomorrow. You
may be able to make a decision about having your blood pressure checked but not
about invasive surgery.
Just because someone
makes a decision that we would not; that is not evidence of a lack of capacity.
It may not be a decision that we like; it may not be one we would make; it may
be a decision we would not encourage: but a decision it is. Once more, to quote
John Stuart Mill: “…there may be good reasons for remonstrating …or reasoning…or
persuading, or entreating, but not for compelling…”
Where, however, it is
determined that capacity is wanting the final two principles of section 1
apply:
“An act done, or decision made, under this
Act for or on behalf of a person who lacks capacity must be done, or made, in
his best interests.”
“Before the act is
done, or the decision is made, regard must be had to whether the purpose for
which it is needed can be as effectively achieved in a way that is less
restrictive of the person's rights and freedom of action.”
Where a person lacks
capacity, a decision will be made in that person’s best interest that achieves the
desired outcome. Where there are several ways of achieving the outcome, one that
is less restrictive of the person’s freedom should be taken. How, though, is a
lack of capacity determined?
There are two tests to
determine a lack of capacity. The first is a diagnostic test contained in
section 2 of the Act:
“For
the purposes of this Act, a person lacks capacity in relation to a matter if at
the material time he is unable to make a decision for himself in relation to
the matter because of an impairment of, or a disturbance in the functioning of,
the mind or brain.”
“It does not matter whether the impairment or disturbance
is permanent or temporary.”
The fact that the
impairment or disturbance must stem from the functioning of the mind or brain
does raise a few questions of some interest; however, I shall not pursue these
here.
If the person (or
persons) assessing capacity is satisfied that there is an impairment or
disturbance causing capacity to be wanting, the second test is then applied. The
second test is a functional test contained in section 3 of the Act:
(a)to understand the information relevant to the decision,
(b)to retain that information,
(c)to use or weigh that information as part of the process of
making the decision, or
(d)to communicate his decision (whether by talking, using sign
language or any other means).”
At common law, it was the case that there had to
be compelling evidence that someone lacked capacity. Things should not be
different under the Act. It is likely that where things are in the balance, a
decision will be made in favour of capacity
In Conclusion
There is something else about autonomy that is important;
so important that that is deserves an article all to itself. I will merely
conclude this article with a mention the horrendous crimes that have been
carried out on innocent human beings in the
name of treatment.
No-one is sure who first uttered the aphorism about
freedom’s price being eternal vigilance. It might have been Voltaire; it might
have been Thomas
Jefferson or Tom
Paine; it might have been John Philpot
Curran. It matters very little who it was: it matters that the aphorism is
true. There are few threats to human freedom greater than an overbearing state
with a medical profession in its thrall.
Garry Costain is
the Managing Director of Caremark Thanet, a domiciliary care provider with
offices in Margate, Kent. Caremark Thanet provides home care services
throughout the Isle of Thanet. Garry can be contacted on 01843
235910 or email garry.costain@caremark.co.uk.
You can also visit Caremark Thanet's website at www.caremark.co.uk/thanet.
