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Published online by Cambridge University Press: 20 November 2013
Autonomous self-determination by competent adults is a cornerstone of medical law. We argue that the application of Kantian autonomy as the paramount model for self-determination at end of life is questionable as it fails to capture subtler nuances of decision-making in this context. We propose an alternative model which we term ‘holistic determination for oneself’ and posit this as a potential contender to the traditional Kantian construct. The paradigm of holistic determination is conceptualised on the basis of sub-determinations which coalesce to form the final determination. This paradigm offers a unique perspective that is multi-axial (based on the levels of decision-making) and multi-dimensional (based on an on-going temporal inter-relational and integrative synthesis of decisions at all levels). Holistic determination for oneself offers a paradigm that is tempered, universal and optimal for self-determination at end of life.
1 Price, D., “What shape to euthanasia after Bland? Historical, contemporary and futuristic paradigms” (2009) 125 L.Q.R. 142Google Scholar. Professor David Price (24th June 1954–3rd January 2012) sadly died after a short illness. He is greatly missed. We wish to dedicate this paper to the memory of David who was a friend as well as an esteemed colleague.
2 See note 1 above.
3 This paper does not seek to critique Price's arguments. Price's article served only as a scintilla for us to engage in further exploration of autonomous self-determination.
4 Re T (Adult: refusal of treatment) [1993] Fam. 95 per Lord Donaldson.
5 Airedale NHS Trust v Bland [1993] A.C. 789 per Lord Goff. This paper will not discuss the sanctity of life doctrine which has been critically considered by Keown, J., “Beyond Bland: a critique of the BMA guidance on withholding and withdrawing medical treatment” (2000) 20 Legal Studies 66CrossRefGoogle ScholarPubMed; Price, D., “My view of the sanctity of life: a rebuttal of John Keown's critique” (2007) 27 Legal Studies 549CrossRefGoogle Scholar; Keown, J., “Restoring the Sanctity of Life and Replacing the Caricature: A Reply to David Price” (2006) 26 Legal Studies 109CrossRefGoogle Scholar.
6 Re B (Adult: refusal of treatment) [2002] EWHC 429 Fam.; Re AK (medical treatment: consent) [2001] 1 F.L.R. 129.
7 Michalowski, S., “Advance refusals of life sustaining treatment” (2005) 68 Modern Law Review 958CrossRefGoogle Scholar.
8 Mental Capacity Act 2005, s. 1–4.
9 Mental Capacity Act, ss. 24–26.
10 For a more detailed discussion on prospective autonomy, and in particular lasting powers of attorney, see Samanta, J., “Lasting powers of attorney for healthcare under the Mental Capacity Act 2005: enhanced prospective self-determination for future incapacity or a simulacrum?” (2009) 17 Medical Law Review 377CrossRefGoogle ScholarPubMed.
11 G. Dworkin, The theory and practice of autonomy (Cambridge 1988), 6.
12 R. Faden, T.L. Beauchamp, A history and theory of informed consent (New York 1986), 7.
13 I. Kant, “Groundwork of the Metaphysics of Morals” in M.J. Gregor, (ed. and transl.) The Cambridge Edition of the Works of Immanuel Kant, Practical Philosophy (Cambridge 1996), paras. 4:440 and 4:436.
14 Ibid. at para. 4: 400.
15 P. Guyer, “Kant on the theory and practice of autonomy” in F. Paul, F.D. Miller and J. Paul (eds.), Autonomy (New York 2003), 70–98.
16 H.E. Allison, Kant's theory of freedom (Cambridge 1990): this paper does not propose to examine the fundamentals of Kantian ideology.
17 Ibid., 16.
18 For Kant, the noumenal world represents the contents of the intelligible world whereas the ‘phenomenal world’ is the sensory reality.
19 B. Gaut, “The structure of practical reason”, in G. Cullity and B. Gaut (eds.) Ethics in practical reason (Oxford 1997), 161–162.
20 Hurka, A., “Why value autonomy?” (1987) 13 Social Theory and Practice 361CrossRefGoogle Scholar.
21 A. Maclean, Autonomy, informed consent and medical law. A relational challenge (Cambridge 2009), 15.
22 Gauthier, C.C., “The virtue of moral responsibility in healthcare decision-making” (2002) 11 Cambridge Quarterly of Healthcare Ethics 273CrossRefGoogle Scholar.
23 S. Woolfe, “The importance of free will” in J.M. Fisher and M. Ravizza (eds.), Perspectives on moral responsibility (New York 1993), 104–106.
24 The case studies described are based upon actual clinical scenarios. All identifiable information has been removed and descriptive facts have been modified slightly to preserve confidentiality. The central issues are unchanged. The authors are grateful to medical colleagues who provided these examples and assisted in constructing the scenarios for the purpose of this article.
25 The details of the meeting are unknown.
26 Mental Capacity Act 2005 s.4 (7)(b) and the moral arguments of A.E. Buchanan and D.W. Brock, Deciding for others: the ethics of surrogate decision-making (Cambridge 1990), 136–139.
27 Re M, ITW v Z and others [2009] EWHC 525 (Fam) Munby L.J. para. 32.
28 Buchanan and Brock, pp. 142–152.
29 A London Local Authority v JH [2011] EWHC 2420 (Fam).
30 Buchanan and Brock, pp. 270–281.
31 As in Alpha's case above.
32 Mental Capacity Act 2005, s. 37(6).
33 R v Portsmouth Hospitals NHS Trust, ex parte Glass [1999] All ER (D) 836 provides a graphic example with an incompetent minor.
34 E. Hui, “A Confucian ethic of medical futility” in R.P. Fan (ed.), Confucian bioethics (Dordrecht 1999), 127–163.
35 In this context the concept of “family autonomy” is used to portray private decision-making by family members.
36 Y. Fung, A history of Chinese philosophy (translated by D. Bodde) (New Jersey 1952).
37 Unless lawfully appointed under a health and welfare lasting power of attorney.
38 This was evident in Alpha's situation, above. Section 4(7)(b) Mental Capacity Act 2005 provides the duty to consult; These duties are also found in the professional guidance of the General Medical Council: End of Life Care (2010) paras. 15 and 16 (Http://www.gmc-uk.org/guidance/ethical_guidance/end_of_life_care.asp).
39 Subject to the duty to maintain confidentiality. Involvement of others for the purposes of consent is recognised in professional guidance, see General Medical Council, Consent: patients and doctors making decisions together (2008) para. 22 (http://www.gmc-uk.org/Consent___English_0911.pdf_48903482.pdf).
40 English courts have rejected substituted judgement as the decision-making standard for those who lack capacity, see: Airedale NHS Trust v Bland [1993] 1 All ER. 821 at 872–3 per Lord Goff and 891–2 per Lord Mustill. Even so, section 4(6) of the Mental Capacity Act 2005 requires decision makers to consider, as is reasonably ascertainable, the person's past wishes, values and beliefs as well as other factors that he would have considered had he been able to do so thereby imbuing a substituted judgment standard into the analysis. For example, in Re G (TJ) [2010] EWHC 3005 the Court of Protection applied the substituted judgment standard in concluding that it was in a woman's interests to act altruistically since this is how she had acted prior to her loss of capacity.
41 Chun-Yan, T. and Tao, J., “Strategic ambiguities in the process of consent: role of the family in decisions to forego life sustaining treatment for incompetent elderly patients” (2004) 29 Journal of Medicine and Philosophy 207–223CrossRefGoogle Scholar.
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44 Gilbar, R., “Family involvement, independence in patient autonomy and practice” (2011) 19 Medical Law Review 192–234CrossRefGoogle Scholar.
45 The notion of “family” is defined broadly to include relationship “units” of diversity: nuclear and extended families, same sex relationships and other non-consanguineous arrangements.
46 Failure to respect the self-determined choice of a competent person must be guarded against. Duress, perhaps in the form of subtle coercion and disguised as benign benevolence, can be difficult to detect.
47 The balance sheet approach is often used to acquire evidence for best interests determinations in persons who lack capacity.
48 In Re Y (mental incapacity: bone marrow transplant) [1996] 2 F.L.R. 787 donation of bone marrow to her sister was considered to bring emotional, psychological and social benefits to an incompetent woman; in Re G (TJ) [2010] EWHC 3005 it was held to be in the best interests of G to pay maintenance to her adult daughter on based on the previous altruistic views of the incapacitated woman. In Simms v Simms [2002] EWHC Fam 2734, Butler-Sloss L.J. held that where there was no alternative to experimental treatment for a mentally incapacitated person the views of the family would carry very considerable weight.
49 Local Authority X v MM and KM [2007] EWHC 2003 Fam. at [108].
50 Re GM [2011] EWHC 2778 para. 21.
51 This argument might apply to Beta's situation above. It is of interest that Beta, on recovery, withdrew his prospective refusal of treatment.
52 Section 1(1) Children Act 1989.
53 Children Act 1989, s. 1.
54 J. Herring, “The Welfare Principle and Parents' Rights” in A. Bainham, S. Day Sclater and M. Richards (eds), What is a Parent? A Socio-Legal Analysis (Cambridge 1999).
55 Re Z (a minor) (Freedom of Publication) [1996] 1 FLR 191 at 212G.
56 A. Donchin, “Autonomy and interdependence: quandaries in genetic decision-making” in C. Mackenzie, N. Stoljar (eds.) Relational autonomy: feminist perspectives on autonomy, agency and the social self (Oxford 2000), 236–258.
57 J. Hardwick, Is there a duty to die: and other essays in medical ethics (New York 2000). The ‘duty to die’ is not a position that is universally held and has been criticised.
58 H. Lindemann-Nelson and J. Lindemann-Nelson, The patient in the family (New York 1995).
59 This was the situation for Beta, above, who withdrew his prospective refusal of treatment.
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61 As the term “rational” is understood in ordinary, rather than Kantian, language.
62 J.S. Mill, (1859) On liberty in utilitarianism and other writings, M. Warnock (ed.) (Glasgow 1962); J. Skorupski, John Stewart Mill (London 1989).
63 Frankfurt, H.G., “Freedom of the will and the concept of a person” (1971) 68 Journal of Philosophy 5–20CrossRefGoogle Scholar.
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66 See note 63 above.
67 I. Kant, “Foundations of the metaphysics of morals” in L. White Beck (ed. and transl.) (Indianapolis 1959), 59–65.
68 See note 67 above at p.73.
69 D. Wiggins, “Categoric requirements” in R. Hursthouse, G. Lawrence and W. Quinn (eds.), Virtues and Reasons: Philippa Foot and Moral Theory: Essays in Honour of Philippa Foot (Oxford 1998), 326.
70 See note 67 above.
71 J. Jacobs, “Some tensions between autonomy and self-governance”, in E.F. Paul, F.D. Miller and J.Paul (eds.). Autonomy (Cambridge 2003), 222.
72 The first principles for such a construct must be founded on notions that the characterised person is reasonable and rational and are incorporated into the way in which they as persons represented themselves, their free and equal moral personality: see J. Rawls, “Kantian constructivism in moral theory” in S. Darwall, A. Gibbard and P. Railton (eds.), Moral discourse and practice: some philosophical approaches (New York 1997), 256.
73 J. Jacobs, “Some tensions between autonomy and self-governance” in E.F. Paul, F.D. Miller and J. Paul (eds.), Autonomy (Cambridge 2003), 221–244: our emphasis in the text.
74 See note 73 above and B. Williams, “Practical necessity” in B. Williams (ed.), Moral luck: philosophical papers, 1973–1980 (Cambridge 1981).
75 H. Rachlin, Behaviour and mind: the roots of modern psychology (New York 1994); Rachlin, H., “Teleological behaviouralism” (1992) 47 American Psychologist 1371CrossRefGoogle Scholar.
76 J.S Mill, On liberty in Utilitarianism and other writings (M. Warnock edition., Glasgow 1962), 189.
77 H. G. Frankfurt, Demons, Dreamers, and Madmen (Indianapolis 1970).
78 See note 63 above.
79 See note 65 above.
80 K. Lehrer, Self-trust: a study of reason, knowledge and autonomy (Oxford 1997), 11–12.
81 Lehrer K, “Reason in autonomy” in E.F. Paul, F.D. Miller and J. Paul (eds.) Autonomy (Cambridge 2003), 181–182.
82 See note 81 above at p. 197.
83 Heteronomy results if the will “seeks the law that is to determine anywhere else other than in the fitness of its maxims for its own giving of universal law”: I. Kant (1785), “Groundwork of the Metaphysics of Morals” M.J. Gregor, (ed. and transl.) The Cambridge Edition of the Works of Immanuel Kant, Practical Philosophy (Cambridge 1996) 4: 385–463; at 4: 441.
84 Ibid., at 6: 203–493; at 6: 212–214.
85 O. O'Neill, “Autonomy: The Emperor's New Clothes” (2003) 77 (Supplementary Volume) Aristotelian Society 1–21.
86 Rousseau's approach to “taint free” determination is to consider legislation by co-ordinated individual selves that works for the common good, and one that will lean towards public utility. See J-J. Rousseau (1755) “Discourse on Political Economy” V. Gourevitch (ed. and transl.) Rousseau: The Discourses and other early political writing (Cambridge 1997).
87 In Levinasian terms there are two types of knowledge: that which brings “the other” into the category of “sameness” (termed “comprehensional ontology”) and knowledge that allows the manifestation of alterity.
88 See the discussion of Levinas in “Philosophy and the idea of infinity.” Originally published in French in (1957) 62 Revue de Metaphysique et des Morale 241–253, cited by A. Strhan, “The very subjection of the subject: Levinas, heteronomy and the philosophy of education” (2009) at http://kent.academia.edu/AnnaStrhan/Papers/373666/The_very_subjection_of_the_subject_Levinas_heteronomy_and_the_philosophy_of_education accessed 30 May 2013.
89 M. Morgan on Levinas's philosophy in M. Morgan, Discovering Levinas (Cambridge 2007), 44–50.
90 H. Putnam, “Levinas in Judaism” in S.Critchley and R. Bernasconi (eds.), The Cambridge Companion to Levinas (Cambridge 2002).
91 C. Chalier, What ought I to do? Morality in Kant and Levinas (transl. by J Murray Todd, Ithaca 2002).
92 MacCormick, N., “The concept of law and ‘The Concept of Law’” (1994) 14 Oxford Journal of Legal Studies 19CrossRefGoogle Scholar.
93 Whilst there is no reason to believe that Alpha and Beta's surrogate decision-makers for were being perverse, on one interpretation their approach could be interpreted as abject paternalism, or possibly evidence of duress.
94 At end of life or, for that matter, at any other time.
95 We are grateful to Professor Prodyot Samanta (President, ThirdEye RiskInsights, New York and Professor of Enterprise Risk Management) for comments and assistance with the development of the mathematical expression for our paradigm. Prodyot has provided several insights into the interplay between rationality, emotions and the specific implications for decision-making (in financial contexts): Jones and Johnson (1973, Journal of Personality), Monat (1976, Journal of Human Stress), Breznitz (2001, British Journal of Social and Clinical Psychology and Loewenstein (2001, 1996).
96 In respect of treatment refusal in the context of this paper.
97 Maclean, A., “Autonomy, consent and persuasion” (2006) 13 European Journal of Health Law 333CrossRefGoogle ScholarPubMed.
98 J.W. Berg, P.S. Appelbaum, C.W. Lidz, L.S. Parker, Informed consent: legal theory and clinical practice (New York 2001), 33.
99 P. Slovic, “Choice between equally valued alternatives” (1975) 1 Journal of Experimental Psychology: Human Perceptions and Performance 280–87. When faced with equally valued alternatives people tend to choose the alternative that is superior on the most important dimension.
100 This has long been accepted as a theoretical construct in other areas of academia. See, for example, D. Kahneman, P. Slovic, A. Tversky, Judgment under uncertainty: Heuristics and biases (Cambridge University Press 1982). Kahneman and Tversky were awarded the Nobel Prize (for Economics) in 2002.
101 Nedelsky, J., “Reconceiving autonomy: sources, thoughts and possibilities” (1989) 7 Yale Journal of Law and Feminism 21Google Scholar.
102 See note 100 above.
103 This is discussed in more detail in section IV E Holistic determination and self-regulation.
104 General Medical Council, Good Medical Practice (General Medical Council 2013); Good clinical practice also requires accurate record keeping and respect for patients' rights to confidentiality.
105 I. Kant (1785) “Groundwork of the Metaphysics of Morals” M.J. Gregor, (ed. and transl.) The Cambridge Edition of the Works of Immanuel Kant, Practical Philosophy (Cambridge 1996) 4:440.
106 P. Guyer, “Kant on the theory and practice of autonomy” in E.F. Paul, F.D. Miller and J. Paul (eds.), Autonomy (New York 2003), 70–98.
107 Ibid., 104.
108 See note 84 above [5:29].
109 See note 104 above at p.78.
110 See note 104 above at p.79.
111 See note 84 above [4:421; 4:429; 4:431].
112 A. Maclean, Autonomy, informed consent and medical law. A relational challenge (Cambridge 2009), 20–21; Secker, B., “The appearance of Kant's deontology in contemporary Kantianism: concepts of patient autonomy in bioethics” (1999) 24 Journal of Medicine and Philosophy 48CrossRefGoogle ScholarPubMed; Wilson, J., “Is respect for autonomy defensible?” (2007) 33 Journal of Medical Ethics 353CrossRefGoogle ScholarPubMed.
113 See note 104 above pp. 70–98.
114 See note 104 above p.80.
115 See note 104 above pp. 90–91.
116 Adapted from the last words of Sydney Carton in Charles Dickens, A Tale of Two Cities (1859) (Penguin Books 1970).