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Autonomy, capacity and the limitations of liberalism: An exploration of the law relating to treatment refusal

Donnelly, Mary. 2006. Autonomy, capacity and the limitations of liberalism: An exploration of the law relating to treatment refusal. PhD Thesis, Cardiff University.

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Abstract

This thesis explores how the law deals with the patient's right to refuse treatment, evaluating the issue in the context of capable, incapable and involuntary patients. The thesis shows how the consent requirement, and consequently the right to refuse, derives from the law's adherence to the principle of individual autonomy which, this thesis demonstrates, is underpinned by Millian liberal theory. Within this view, the requirement for capacity is fundamental. The thesis shows that capacity acts as gate keeper for the right of autonomy, determining whether or not the right will be respected in each individual's case. Therefore, an appreciation of the inter-relationship between the principle of autonomy and the requirement for capacity is essential. The thesis uses the term 'autonomy paradigm' to describe this inter-relationship. The two components of the autonomy paradigm are set out in the first two chapters of the thesis. The primary aim of the thesis is to establish the limitations of the autonomy paradigm. It identifies two difficulties with the paradigm. The first is that the paradigm is premised on a binary division of patients into the categories of capable and incapable, with incapable patients regarded as largely irrelevant within the model. The consequences of this aspect of the paradigm are explored in chapters 3 and 4 of the thesis. The second difficulty is that the process of capacity assessment is not the value-free, neutral procedure that the autonomy paradigm requires. In reality, patients are not determined to be capable or incapable without reference to the nature of the decisions they are making and the consequences of these decisions for them. Thus, the autonomy paradigm is based on an idealised view of the capacity requirement which cannot be delivered in practice. For these reasons, a more realistic view of the autonomy paradigm must be taken.

Item Type: Thesis (PhD)
Status: Unpublished
Schools: Law
Subjects: K Law > K Law (General)
ISBN: 9781303207686
Date of First Compliant Deposit: 30 March 2016
Last Modified: 10 Jan 2018 00:56
URI: http://orca.cf.ac.uk/id/eprint/56131

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