Protecting self-determination in healthcare: a comparative study of the consent model and a novel property model

K Law (General)

Edozien, Leroy Chuma ; McLean, Sheila

University:University of Glasgow

Department:School of Law

关键词: Self-determination, healthcare, consent, property model, patient's rights.;   

Others  :  http://theses.gla.ac.uk/4265/1/2013edozienphd.pdf

来源: University of Glasgow

【 摘 要 】

It is generally accepted in legal and bioethical discourse that the patient has a right to self-determination. The competent patient should be in a position to make informed decisions about his/her care. In practice, this is often not the case. Paternalism, the approach to medical practice that left decision-making in the hands of the doctor, is waning and it is increasingly recognised in both the legal and medical arenas that there are values other than medical factors which determine the choices that patients make. Unfortunately, these developments have not resulted in huge advances for patient self-determination. This is largely because the mechanism by which the law purports to protect self-determination – the consent model – has fundamental flaws that constrain its effectiveness. In the last three decades, various attempts have been made to reconceptualise consent on order to make it fit for purpose, but these have achieved only limited success.This thesis starts with the premise that it is often more productive to consider what an alternative model has to offer, than to persist with amelioration of a model that is fundamentally flawed. The limitations of the consent model are discussed and a novel model, the property model, is advocated. The theoretical underpinnings of this model and its structure are presented. Essentially, the patient’s bodily integrity is protected from unauthorised invasion, and his/her legitimate expectation to be provided with the relevant information and opportunity to enable him/her make an informed decision regarding treatment is taken to be a proprietary right.It is argued that the property model potentially overcomes the limitations of the consent model, including the obstacle caused by the requirement to prove causation in consent cases. The property model provides a means by which the patient’s right to self-determination can be recognised as a distinct legal right. The model does not create new rights, only seeking to afford stronger protection of an existing right. No constitutional, professional, or other conflict is generated by applying property analysis to patient self-determination. The model fits with the rights-based approach that the courts have evolved in UK consent cases, and is consistent with modern medical professionalism.