Although the law may be far from our minds as we try to make healthcare decisions in circumstances which can be difficult and traumatic, in fact, the law plays a central role in the decision-making process. It provides the framework within which we deliberate; it tells us when we can make decisions for ourselves and when we cannot and it dictates what happens to us when our right to make our own decisions is removed. This book critically evaluates the law's engagement with the process of healthcare decision-making and explores ways in which this might be enhanced.
Since the latter part of the twentieth century, the law's approach to healthcare decision-making has centred on ensuring respect for the principle of individual autonomy. In this, the law reflects the predominant ethical status which has been accorded to the principle. Thus, John Stuart Mill's famous aphorism that ‘[o]ver himself, over his own body and mind, the individual is sovereign’ might be seen as the defining summation of principle. This principle is given legal effect in Cardozo J's often-cited dictum that ‘every human being of adult years and sound mind has a right to determine what shall be done with his own body’ Yet, the reality has always been more complex than citations of Mill or Cardozo might suggest. The status of autonomy within ethical discourse has been challenged for almost as long as the principle has been revered, while in a legal context the degree of respect accorded to the principle of autonomy has varied depending on the circumstances in which the principle is called into action.