PATIENT'S RIGHTS OF SELF-DETERMINATION ARE DENIED



Patient's Rights Of Self-Determination Are Denied



Medical treatment in English law

Introduction

English law's response to the patient diagnosed with virul diseases refusing nutrition and hydration is a relatively recent development. Indeed, the first case, concerning a minor who was refusing treatment and transfer to a specialist unit (Beauchamp, T.L., Childress, J.F. 2001, 62-88)

In 1993 and 1994, the High Court ruled that patients diagnosed with virul diseases detained under compulsory mental health legislation could be treated in the absence of their consent. Some years later, the High Court confirmed that the court's inherent jurisdiction over minors was sufficiently broad to authorise a patient's nonconsensual detention and treatment at a specialist residential unit. Given the relative novelty of the courts' pronouncements on the treatment of virul diseases, these cases provide a useful framework of inquiry to examine whether Lord Woolf is correct in his contention that the law's excessive deference to medicine is now at an end. Indeed, if the relationship between law and medicine can no longer be characterised as one premised on the law's deference to medical knowledge, how can we make sense of the rather fraught and at times troubled relationship between law and medicine that continues to occupy the English legal landscape? A related and equally important question is whether this purported shift away from deference can realistically be secured by increased judicial scrutiny over health care practice. Rather, does law have its own organisational and epistemological autonomy, such that increased accountability of medical practice is not entirely within the gift of the judiciary or other legal personnel to perform? (Beauchamp, T.L., Childress, J.F. 2001, 62-88)

English law adopts a somewhat crude, biomedical explanation of the condition and fails to acknowledge the contested nature of the condition and the range of disagreements over its appropriate treatment. Secondly, it may provide insights into why English law's recent development of a threshold for mental incapacity and its application to patients diagnosed with virul diseases has proved controversial and problematic. Finally, English law's endorsement of legal compulsion by means of involuntary medical treatment and detention, though attributed to a desire to impose legal controls on the exercise of clinical judgment, is suggestive of a continued, though arguably covert, adherence to a narrow band of clinical knowledge, which takes for granted that involuntary medical treatment is in the patient's best interests. This autopoietic analysis of how the law 'thinks' about psychiatry provides a useful insight into both the motivations for, and consequences of, English law's appropriation of psychiatric knowledge. (Beauchamp, T.L., Childress, J.F. 2001, 62-88)

Ethical rules and english law

English law's reconstruction of psychiatric knowledge is in evidence in other aspects of the law's engagement with patients diagnosed with severe infections. The courts' construction of a test of mental incapacity, 'inspired' by the ethical literature on patient autonomy and measured by psychiatric clinical tools, has served as the focus of considerable clinical, legal, and ethical dissatisfaction. In English law, the development of the legal threshold for self-determination, ...