Autonomy In Medical Law

Introduction “Every human being of adult years and sound mind has a right to determine what shall be done with his own body” 1 Cardozo J in Schloendorff v Society of New York Hospital

“It would be unrealistic to suppose the principle here affirmed will not over time be the subject of incremental and analogical development. At the very least this case shows that where justice and policy demand it a modification of causation principles is not beyond the wit of a modern court. The right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles. A result which he deemed to be in accord with one of the most basic aspirations of the law, namely

Up until quite recently, the signal from the English courts on this issue was the only approach to be applied was the doctor centered approach. This can be seen from decisions from Bolam and Sidaway. However the landmark decision of Chester v Afshar seemed to change this as the court favoured a patient centered approach over the doctor centered approach. While confusion did exist after this case, a subsequent Scottish decision reaffirmed the Chester principle and it will be interesting to see what approach the English courts will take in the future when faced with similar cases. In the meantime, it’s fair to say that the doctor centered approach as advocated by Sidaway remains the most favourable approach in England. However the law appears to be shrouded in mystery in light of the Chester and Montgomery decisions. ( While Chester signal the death of Bolam, Mongromery was only the belated

This was evident in Chester v Afshar79. Here the court had to address the issue of “where the plaintiff can establish merely that, had he or she been told of the risks, as the law says he or she should have been, he or she would not have undergone the procedure at the time he or she in fact did, but would have done so later, running the very same risks“80. In this case, the plaintiff suffered from acute back pain. He decided to make a consultation with the defendant doctor. On examining the plaintiff, the defendant noticed that three inter verbal discs were causing the plaintiffs pain and he advised him that he should have them removed. However the procedure carried a known 1–2% risk of nerve damage and paralysis. After the operation the plaintiff suffered from the risk mentioned. The plaintiff sued on the basis that had these risks being informed to her she would not have gone ahead with the operation or she would have sought two more opinions on the matter. The judges accepted the plaintiff’s arguments that if she been told of the risk, she would have sought at least two further opinions as to whether the operation was necessary. The judge held that the causal link was established, notwithstanding that the plaintiff was unable to prove that she would never