Autonomy, rights and the rise of the assertive citizen

The rise of medical law as a distinct discipline and constituted as such by its inherently ethical content is closely associated with the phenomenal rise of the assertive citizen in Western culture. This phenomenon began to emerge from the late 1960s onwards. In the early 1960s, Devlin (1962) commented:

Is it not a pleasant tribute to the medical profession that by and large it has been able to manage its relations with its patients ... without the aid of lawyers and law makers? (Devlin, 1962: 103).

By the beginning of the 1970s, however, the shape of the relationship between the medical and legal professions had changed dramatically. Medical advances had begun to pose ethical dilemmas of unprecedented complexity (Dworkin, 1996a). This coincided with the rise of consumerism and consumer rights. Medical decisions which were once widely accepted as falling exclusively within the discretion of professionals had been brought firmly within the scope of legal redress.

The growth of the consumer-inspired doctrine of ‘informed consent’ represents an important stage in the recalibration of the relationship between doctor and patient away from medical paternalism (Kennedy, 1981; O’Neill, 2002). The growth of consumerism is closely related to the post-industrial emergence of individualism or ‘individualization’. This is linked to the loosening of ties to tradition and the advance of individual autonomy. Beck & Beck-Gernsheim (2002) have charted the emergence of the assertive citizen from the constraints of “normal biography” into relative freedom of “the do-it -yourself biography”. Beck has observed the rise of a new “institutionalised individualism” in which people are “invited to constitute themselves as individuals: to plan, understand, design themselves as individuals” (Giddens, 1998: 36).

Another linked development has been the growth of moral pluralism made possible by an important shift in cultural mood in the latter part of the 20th century, ‘postmodernism’. The traditional presumption that people share a concrete morality, whether through religious observance or rational reflection, has given way to the felt importance of pursuing individually chosen goals and achieving personal freedom (Church of England Doctrine Commission, 1997). The lack of a shared moral

framework within which to make medical decisions has led to increasing emphasis on allowing people to live according to their personal values and to pursue their individual life-plans (Harris, 1985; Spriggs, 2005). Technological advance, the economics of consumerism, the rise of individualism, the growth of moral pluralism and the increasing importance of individual autonomy have all contributed to the emergence of the assertive citizen in the healthcare context.

The culture of moral pluralism and lack of shared ethical foundations has had implications for the role of law. If ethically-contentious cases arising in healthcare cannot be resolved by medical ethics because of the variety of ethical viewpoints which exist, then problems that arise in practice need another forum for their resolution. Miola (2007) argues that “the law cannot help but be involved in this area, as many of the medico-legal cases that come before the courts have inherently ethical content” (2007: 8). Medical law is a function of the demand by an assertive citizenry for a relevant effective outlet for the difficulties that arises for it in the medical context.

A central finding of this thesis is that the courts have responded to the demands of the assertive citizen by developing an ethical discourse to inform the difficult practice of judicial decision-making in medical law contexts. The courts have developed this language in stages and the concept of autonomy has been central to this development. It is proposed that the medical law reports chosen for analysis provide snapshots of this development and, in the process, this thesis makes a contribution to the “as-yet largely unexplored historical jurisprudence in various quarters of the medico-legal world” (Laurie, 2006b: 131). In short, this work goes at

least some way to demonstrating that medical law is a practice which has dynamically developed in response to social change.

1.2.4 From ‘civil liberties’ to ‘human rights’: the legal ‘positivisation’ of rights

Coincident with these developments has been the rise of ‘rights talk’ (Glendon, 1991). It is widely stated that rights discourse has become a lingua franca of modern politics and law and has led several to designate the current era as ‘the age of rights’ (Henkin 1990; Bobbio, 1996). Epp (1998) and Ignatieff (2000) have referred to ‘a rights revolution’ which has fundamentally altered the way in which the relation between citizen and state is understood. The nature of rights is highly contestable. The existence of rights has, amongst other things, been related to human need, responsibility or interests (Weinreb, 1994; Fukuyama, 2003). For some, the existence of rights can be affirmed notwithstanding the lack of establishment of firm normative foundations (Hart, 1979; Thomson, 1990).

Whatever rights consist in, Loughlin (2003) argues that rights discourse has changed over history and in the contemporary West has had expressed a transformed relationship between law and government, the citizen and the State. He has pointed to a ‘blurring’ in the post-Enlightenment period of the formerly clear distinction between ‘positive law’, expressed in the body of rules, and politics, the language in which concepts of the right and the good are engaged with. This elision of the discourses of law and politics has accompanied the transmutation of ‘natural rights’ into ‘human rights’ and fuelled “a tremendous expansion in the creativity of legal argument, as basic values of dignity, autonomy, and equality are explicated into ever more ingenious forms of rights claims” (Loughlin, 2003: 127).

Natural rights were, especially within the Hobbesian conception, regarded as political claims which, within the British political tradition, sought to protect the subject from the restrictive effects of law. These have, accordingly, “generally taken the form of negative liberties, serving mainly to define a zone of individual autonomy which government must not invade” (Loughlin, 2003: 127). However, rights (and human rights) discourse has shifted from an exclusive political domain and become a fundamental feature of the legal order. This has led to an expansion in ‘law’s empire’ in which liberty “is no longer the sphere of individual autonomy beyond the constraints of the law [but] must now be defined by the operations of the law” (Loughlin, 2003: 128). “Law, once a form of coercive order, now presents itself as a means of maintaining freedom.” (Loughlin, 2003: 128).

This development has had a number of potentially revolutionary implications for the relationship between law, morals and politics. Firstly, it has meant that rights have become institutionalised and ‘positivised’. In other words, rights have become items of legal, rather than simply political, order. Secondly, it has made the judiciary the ultimate arbiters of competing rights claims, which might properly have been taken to be political matters to be determined by a democratic state’s elected representatives. Thirdly, and relatedly, it has introduced ethical considerations into matters of judicial deliberation making it more difficult to separate law and morals in the tradition of legal positivism. Fourthly, the moralisation of the law has meant that political critique can no longer appeal to a non-judicial standard, but must come from within the law.