Choosing Life, Choosing Death: The Tyranny of Autonomy in Medical Ethics and Law

By Charles Foster

Published by Hart Publishing

ISBN-10: 1841139297, ISBN-13: 978-1841139296

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Autonomy is commonly thought of as a guiding ethical principle which promotes the ability of an individual to determine their own 'life path'. It is commonly translated in the legal arena in positive terms of self-determinism and negative constraints of non-interference. But the term holds a special meaning in the ethics/rights discourse as an inalienable virtuous human quality which generates rights and warrants respect. Not to be confused with 'consent', which merely allows an individual to choose what's on offer, autonomy has arguably established itself as the dominant principle in medical ethics, operated above all else. This 'tyrannous' rule of autonomy is Foster's subject matter. This book provides an accessible critique of the principle of 'autonomy' in the context of medical law. As a lawyer himself, Charles Foster succinctly summarises the various legal issues arising, as the title suggests, from conception to death.

Foster follows an increasingly popular yet awkwardly traditionalist school of thought which preaches caution over an arguably alarming deference to the principle of autonomy in academic discourse. Awkward because most discourses encourage forging ahead with the new, rather than an uptake of the old. Yet, as Foster admits, many of the solutions to the ethical problems in his book are indeed 'old'. Foster firmly places himself against the presumption that autonomy occupies the prominent position in medico-legal discourse, and one that is treated as the only guiding principle. By helpfully contrasting the ethics (the academic discourse) with the reality (the law), he not only illustrates that it does not, but also that it should not, take on this role.

Foster argues that autonomy, as a guiding principle, is at best unhelpful in determining a course of action (it lacks the prescriptive function the law so requires) and at worst leads to unsavoury conclusions. This critique has also been expressed by Jonathan Montgomery, who argues in his book 'Law and the Demoralisation of Medicine' that in the context of obtaining informed consent, the justificatory arm of autonomy is dangerously conflated with the consent requirement. In the medical context, the latter arguably serves as a defence to the medical profession and researchers rather than promoting the autonomous decision-making capacity of the patient themselves.

In chapter two, Foster proceeds to offer up a number of illustrative examples where autonomy reveals itself to be either entirely unhelpful or non-existent. The point is, the microcosmic qualities of the courtroom allow us to witness the daily operations of autonomy in the practical world: the hospital word, the genetic database company, the bedrooms of private individuals. Using these examples, Foster manages to drive a great chasm between law (reality) and ethics (discourse).

Chapter four discusses the reproductive autonomy of Diane Blood and Natallie Evans, two women who battled the UK courts for the right to use stored embryos without their husband's consent, either because the husband was deceased, as in the Blood case, or because he objected, as in the Evans case. These cases illustrate firstly how the principle of autonomy has underpinned cases brought under the European Convention of Human Rights but also how the principle is unhelpful when pitched against other people's autonomy rights, in these cases the father or boyfriend's autonomy rights.

In chapter six, Foster suggests that autonomy supports the genetic enhancement of human beings through positive selection of certain 'social' characteristics such as blue eyes or 'greater intelligence,' a practice currently prohibited. Straightforward autonomy, argues Foster, interpreted in this context as the freedom to choose the characteristics of one's child, leads us to view children as commodities no different to anything we buy in the shops, an outcome which he finds unsavoury.

Another arena in which autonomy is cautioned against is that of 'genetic confidentiality', as discussed in chapter seven. Foster identifies the philosophy behind upholding confidence in dealing with an individual's private information. An assumption is made that such protective laws and guidelines uphold the classic 'life-plan' autonomy by promoting the ability of patients to decide how their private information should be used. Under a narrower interpretation of autonomy it is difficult to criticise a breach of confidence which the individual concerned knows nothing about, nor does in any way affect the way he leads his life, notes Foster. Can such a breach be justified? No, he argues. It is far more natural to recognise a right to dignity, which is more objective than autonomy - it has more legal utility. One problem he identifies is that most judges nowadays regard confidentiality as an 'old-fashioned, autonomistic, self-deterministic issue' and possibly overlook that dignity has 'a lot to contribute'. Personally, I am somewhat sceptical of the transmutation of autonomy with dignity - both concepts are equally opaque, lacking in normative force and practically indeterministic.

The value of this book largely derives from Foster's own lawyerly personality. He candidly reveals a 'deep suspicion' of medical ethics 'grounded in a sanctimonious and profoundly unattractive conviction that of the two disciplines - ethics and law - my own discipline of law is the senior partner. This is only because the law is forced to decide things.' Such a bold statement is very much needed in an area where the distinction between law and ethics is becoming hazy.

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