Autonomy (literally “autonomy”) refers to the ability to live according to one`s own reasons and motives. When it comes to the autonomy of ordinary citizens, Western society has changed dramatically over the past 350 years. Before the Enlightenment, most people lived under the rule of a monarch or similar authority. Early Enlightenment philosophers (e.g., Hobbes, Locke, and Rousseau) championed what is now called the social contract theory. It is the view that people`s moral and political obligations should depend on agreement on the rules that will apply in their respective societies. The Court noted that, although the Constitution does not specifically protect the right to privacy, a number of U.S. Supreme Court decisions suggest that some guarantees of the Bill of Rights have penumbra covering the marital relationship. These effects are mitigated when we look at the practical legal reality, but their urgency should not be underestimated. The common law has already developed the category of the “vulnerable adult” who meets the functional test of capacity (see below), but is denied decision-making power so that more “rational” decisions can be made.27 And, in a less organized way, jurisprudence in a broader sense betrays the use of “Kantian” rationality as a basis for refusing decision-making.28 It is reasonable to assume29 that the famous statement of Lord Donaldson MR that the law of decision-making should resemble capacity rather than rationality30 arose from the concern to protect the plural and immeasurable moral values that exist in the population and to protect people from undue interference in their decision-making. But this formalized fish position still contradicts concerns about the welfare of the weak and has not been applied consistently.31 It is difficult to find a principled and solidly applicable theory that allows for pluralistic views and does not arbitrarily address concern for the “truly incompetent” (for lack of a better term). Where theories suggest that the foundation of privileged decision-making is rationality and that the derivation of normative protection of human actors is its rationality, it is difficult to avoid conflicts between Kantian calls to autonomy as rationality and Millian`s claims to freedom as protection of plural goods or as the best way for people to achieve the best for themselves.
The existence of the patient`s right to make his or her own decision, which can be considered a fundamental human right protected by the common law, is why a doctrine has been developed that enshrines the patient`s right to be informed of the risks of surgical treatment. [and] the courts should not allow the physician`s opinion of what is best for the patient to override the patient`s right to decide for himself whether or not to undergo the treatment offered to him.71 In cases such as Chester v. Afshar, another type of concern is expressed.52 In this case, the extent of the applicant`s liberty was clear; She has the right to obtain or refuse the surgery proposed by Mr. Afshar. It was a question of respecting their autonomy. In order to exercise her freedom independently, she argued (successfully) that she should have received more information from her surgeon. In Chester, the courts were not charged with reassessing the limits of liberty; Its task was to assess the appropriate requirements for respect for autonomy. A central tenet of many ethical arguments within medical law is patient autonomy.1 While we have seen a welcome shift from a system dominated by largely unchecked paternalism, there is no general consensus on the direction in which medical law should develop.2 Competing concerns for greater well-being and individual freedom, complicated by a global commitment to pluralism of values, to make it a sensitive area of policy-making.3 Moreover, there are different interpretations and justifications for different concepts of autonomy.4 In this paper, we argue that in response to these questions, the courts have failed to properly distinguish between political concepts of freedom and moral concepts of autonomy. This article analyzes patients` rights with respect to ethical principles associated with the historical perspectives that accompany them.
It also establishes laws, or lack thereof, that affect patients` rights in the United States. In the United States, the right to informed consent is protected to some extent by laws at both the state and federal levels. 42 CFR § 482.13 states that “the patient or his representative (as permitted by state law) has the right to make informed decisions about his or her treatment. One of the rights of the patient is to be informed about his state of health, to be involved in the planning of care and treatment. Almost all states have laws that provide more detail than the U.S. Congress regarding the details of consent rights in their respective jurisdictions. However, due to the vagueness of consent rights established by the executive, the judiciary is generally the branch that enforces informed consent rights in the context of patients` tort claims against health care providers. The Royal College of Surgeons` recent publication, Consent: Supported Decision-Making – A Guide to Good Practice, provides detailed and practical advice on Montgomery`s impact and how surgeons should protect patients` rights to autonomy. In this way, tendencies to improve patients` freedom and autonomy have emerged on the basis of a belief in pluralism of values.102 Given this belief, or at least the belief that it is not for the state to order or order the values of all within a certain framework of (in)admissibility, it has been understood that a physician, A judge or other third party is not in the best position to decide how a patient should be treated.103 The patient is treated as if she were more closely associated with her own values, beliefs, preferences and priorities.