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Autonomy and Paternalism: Two Goals in Conflict

Published online by Cambridge University Press:  28 April 2021

Elias S. Cohen
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Extract

The development of concepts of autonomy and paternalism, as applied to children, women, the mentally ill and mentally retarded, and the elderly, has been a remarkable journey for philosophers, lawyers, physicians, caregivers, and politicians. Autonomy and paternalism have moved together in uneasy company to new definitions and applications derived in an extended dialectical process that has not only refined the definitions but also moved them away from the extreme ends of the gamut. To the extent that autonomy is equated with independence of action and paternalism is equated with coercive actions contrary to an individual's wishes or desires in order to achieve a beneficent end, we have exercised some of the most extreme and benighted paternalism while permitting in some sectors of our lives great independence on grounds of classical autonomy. Refinements of these concepts have moved us to new levels of sophistication and have made us aware of new issues and problems with which we have yet to wrestle.

Type
Article
Information
Law, Medicine and Healthcare , Volume 13 , Issue 4 , September 1985 , pp. 145 - 150
Copyright
Copyright © American Society of Law, Medicine and Ethics 1985

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References

208 U.S. 412 (1908).Google Scholar
Id. at 421–22.Google Scholar
This was the prevailing judicial view until the case of Henningsen v. Bloomfield Motors, 161 A.2d 69 (N.J. 1960).Google Scholar
Pub. Res. 11, 74th Cong., 1st Sess., 49 Stat. 115 (1935).Google Scholar
18 U.S.C. §§241 et seq., 372, 2384 (1976); 28 U.S.C. §§1343, 1443, 1446 (1976); 42 U.S.C. §§1981 et seq., (1976).Google Scholar
U.S. Const, amend. I–V, XIII–XV, XIX, XXI (repeal of prohibition), XXIV, XXVI (lowered voting age).Google Scholar
Horstman, P., Protective Services for the Elderly: The Limits of Parens Patriae, Missouri Law Review 40(2): 215 (Spring 1975); Regan, J., Protecting the Elderly: The New Paternalism, Hastings Law Journal 32(5). 1111 (May 1981).Google Scholar
Cal. Probate Code §§1801, 1827.5. 1828.5 (1984).Google Scholar
387 U.S. 1 (1966).Google Scholar
442 U.S. 584 (1979).Google Scholar
Childress, J.F., Who Should Decide? Paternalism in Health Care (Oxford University Press, New York, N.Y.) (1982).Google Scholar
Id. at 61–66.Google Scholar
See Friedman, M., Friedman, R., Free to Choose (Harcourt Brace Jovanovich, New York, N.Y.) (1980).Google Scholar
I am inclined to agree with Frederick Jackson Turner, who suggested that much of the American character and our political and social styles were created by our historical proximity to a frontier which offered free land and apparent unbounded opportunity up until the end of the last century. Turner, F.J., The Significance of the American Frontier in American History, in Proceedings of the Historical Society of Wisconsin (Madison, Wis.) (1894). See also Turner, F. J., The Frontier in American Society (H. Holt and Co., New York, N.Y.) (1920).Google Scholar
Ariz. Rev. Stat. Ann. §14-5101 (1975).Google Scholar
Ind. Code Ann. §29-1-18-1(C) (2) (West 1979).Google Scholar
See, e.g., S.C. Code §43-29-10(4) (definitions). But see Md Ann. Code, health-gen. §10-609(d), which requires for all persons 65 and over subjected to involuntary commitment proceedings a special evaluation by a geriatric evaluation team to identify the least restrictive alternative available, and Mont. Code Ann. §53-21-102(14) which incorporates for commitments of elderly people the standard of “danger to self or others.”Google Scholar
Pa. Stat. Ann., tit. 50, §7101 (Purdon 1985).Google Scholar
422 U.S. 563 (1975).Google Scholar
Neveloff-Dubler, N., Outline distributed at conference, Legal & Ethical Aspects of Health Care for the Elderly (sponsored by the American Society of Law & Medicine, Washington, D.C.) (1983).Google Scholar
Childress, supra note 10, at 12–13.Google Scholar
Id. at ix.Google Scholar
Report of the Mayor's Public-Private Task Force on Homelessness—1984–85, Philadelphia, Pennsylvania, at 7.Google Scholar
Police Transport the Homeless in Freezing Weather, Adult Protective Services Network News, iss. 13, p. 1 (Spring 1985).Google Scholar
See Childress, supra note 1, at 102–23.Google Scholar
377 F. Supp. 1361 (E.D. Pa. 1974), cert. denied, 434 U.S. 943 (1977).Google Scholar
377 F. Supp. at 1370.Google Scholar
Alexander, G., Lewin, T., The Aged and the Need for Surrogate Management (Syracuse University Press, Syracuse, N.Y.) (1972).Google Scholar
See Vecchione v. Wohlgemuth, slip opinion at 23 (E.D. Pa. June 30, 1978) (Becker, J.) (unpublished opinion given after settlement hearing).Google Scholar
Cal. Probate Code §§1801-1911 (1984).Google Scholar
Regan, J., Adult Protective Services: An Appraisal and a Prospectus, in National Law and Social Work Seminar: Proceedings and Prospects (University of Southern Maine, Portland, Me.) (1982).Google Scholar
Id. at 14.Google Scholar
Id. at 15–18.Google Scholar
State Statutory References that Recognize the Durable Power of Attorney, in Cohen, E., Durable Power of Attorney: An Important Alternative to Guardianship, Conservatorship, or Trusteeship (Temple University Long Term Care Gerontology Center, Philadelphia, Pa.) (1984) at app. B.Google Scholar
U.S. Senate Special Committee on Aging, Developments in Aging: 1983 (U.S. Gov't Printing Office, Washington, D.C.) (1984).Google Scholar
Office of Technology Assessment, Congress of the U.S. Selected Chronic Conditions Technology and Biomedical Research, in Technology and Aging in America (U.S. Govt. Printing Office, Washington, D.C.) (1985).Google Scholar