Ethics & the Importance of Competing Critical Theories in Medical Law

Values & the Law “In taking a critical perspective of

our own on controversial questions

in law, it is better that we draw on a

range of different critical

perspectives rather than on merely

one perspective alone.”

Medical Ethics and the Detainment

of Mental Health Patients

1

Introduction

The question of whether or not psychiatric patients ought to be detained against their will invokes

contemplation of conflicting ethical principles. The detainment of an individual is the ultimate encroachment

of their autonomy and liberty. Such conduct therefore requires a proportionately just cause. This is the

primary concern of ethical discourse, the difference between the „rightness‟ and „wrongness‟ of action. In

such a pursuit the ethical theorist has recourse to a number of ethical theories concerning the morality of

action. However, the inevitable outcome of the existence of conflicting ethical theories is that to adopt one

or another may be considered as producing diametrically opposed outcomes.Indeed, Smart argues “it is

still possible that there is no ethical system which would be satisfactory to all men, or even to one man at

different times1”.

This essay will undertake a discussion of rights theory and care ethics as they apply to mental health

provision. Beginning with an analysis of the dominance of rights theory in UK law, I will present the

difficulties posed by mandatory detention and treatment of mental health patients with respect to the

sovereign notion of autonomy as a right. Subsequent to this I will argue that rights theory poses a

dangerous centralisation of concern for autonomy, rendering individuals isolated entities within society.

Here I will contend care ethics offers an attractive supplementary role toward those suffering from

conditions who are in dire need of compassionate assistance. Contrary to the notion of the unencumbered,

sovereign self I use care ethics to demonstrate the reality of human vulnerability and the importance of

social integration and indeed, paternalism.By doing integrating rights theory in care ethics as

complimentary theories, I contend that the availability of multiple ethical approaches, far frombeing

extraneous variables, ought to be embraced as intellectual tools with which we may deduce ethical action

in complex scenarios.

1 JJC, Smart. A Utilitarian System of Ethics, in Smart and Williams Utilitarianism: For and Against (Cambridge UP 1973) p73

2

The Law: Detention &Treatment

Before exploration of the value of a multi-ethical approach,, we must first briefly consider the controversy of

the law itself. The Mental Health Act 19832 (henceforth referred to as MHA) and Mental Capacity Act 2005

(MCA) provide the general framework for the compulsory detention of those deemed „mentally

disordered‟3and „incapacitated‟4 respectively. Detention under the MCA is far more constrained than the

MHA, restricted to instances where a “vital act”5 is “reasonably6” believed necessary in order to administer

life sustaining treatment and where doing so is compliant with a relevant court order7. The MHA 1983

however, grants a wider scope for those deemed mentally disordered and is therefore the more contentious

of the Acts. Indeed, Jackson rightly notes that in a rare exception to the bioethical and legal tenants of

autonomy and competency, a patient may be detained for the purposes of treatment even when

competently refusing8.The MHA provides that a patient may be admitted into hospital and detained upon a

number of grounds, primarily that to do so is in the interest of his safety and/or that of others9 and that to do

so is in the interest of assessment10 or treatment11. Section 3 of the Act, which provides for the detention of

patients for the purpose ofappropriate and effective treatment12,poses a particular affront to the patient‟s

autonomy and liberty. Upon the endorsement of two medical practitioners13 the patient may be detained by

up to 6 months for treatment at which point the time may be renewed. Herring quite rightly observes that

this provision theoretically means that a person may be detained for an indefinite period of time, perhaps

even for the duration of their life14.

2 As amended by the Mental Health Act 2007

3Mental Health Act 1984 (amended by the Mental Health Act 2007), s1(2) defines mental disorder as: “any disorder or disability of

the mind” other than learning disabilities per s1(2A) 4 Mental Capacity Act 2005 s2(1) defines those deemed without capacity as a person who “lacks capacity in relation to a matter if at

the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” 5 Mental Capacity Act 2005, s4B(5)

6 Ibid

7 Ibid s4A(3, 4 & 5)

8 Jackson, E. Chapter 6: Mental Health Law. Medical law: text, cases and materials. (Oxford: Oxford University Press, 2013) p287

9Mental Health Act 1984 (amended by the Mental Health Act 2007), s2(2b); s3(2c)

10 Ibid Sections 2 and 4 in emergencies

11 Ibid Section 3

12 Ibid Section 3 (2d)

13 Ibid Section 3(3)

14 Herring, J. Medical Law and Ethics, fifth edition. (Oxford: Oxford University Press, 2014) p571

3

Indefinite detention without formal trial is a rare concept in UK law. Indeed, even in the case of alleged

terrorists the concept was deemed disproportionate15. With particular regard to section three, Cavadino

criticises the criterion for detention as “too wide” affording “excessive paternalism” and omitting “due

process in the legislative framework”16. This argument might be continued and asserted that to detain a

person in these circumstances infringes their right to liberty as enshrined in Article 5 of the European

Convention on Human Rights 1950 (ECHR)17 and indeed a challenge on these grounds is protected.

However, the view of the European Court of Human Rights (ECtHR) largely reflects that of UK law. The

case of Winterwerp v Netherlands18 stipulated that detention was appropriate where the patientwas

objectively and verifiably shown to be of unsound mind; the disorder is of a degree that merits detention;

and where the disorder persists throughout the length of detention.

Further to the prospect of detention is the ensuing treatment which may be an equally grotesque violation

of one‟s liberty, bodily integrity and privacy. In the interest of illustration, consider that the MHA has been

applied in cases involving the coercive feeding of anorexic patients19, those with personality disorders20 and

even to approve the coercive caesarean section of a patient21.To do so to an otherwise competent and

mentally sound person would no doubt be tantamount to a violation of the absolute prohibition of torture

and inhuman, degrading treatment as enshrined in Article 3 of the ECHR. Nonetheless, such treatment has

been deemed compatible with Article 3 on the grounds of “therapeutic necessity”22.

Clearly then, mental health law provides for serious encroachments of the autonomy and liberty of patients

deemed to be of unsounds mind, even in cases where a patient is deemed otherwise competent. Law

though often underpinned by ethical consideration, is not necessarily ethical. Indeed, law may be used for

draconian effect. It is for the judge to apply law and ethicist to evaluate its moral merit. For this we turn first

to the most dominant ethical theory in modern UK: the theory of rights.

Ethics& Dominance of Rights: The Sovereignty of the Individual

15

See the controversy and subsequent repeal of the Anti-terrorism, Crime and Security Act 2001 with particular regard to sections 21 and 23. For a discussion see generally: Tomkins. Legislating Against Terror: The Anti-Terrorism, Crime and Security Act 2001 (Public Law, 2002) pp 205-20 16

Cavadino, M. A Vindication of the Rights of Psychiatric Patients. (Journal of Law and Society, Vol24, 1997) p245 17

As ratified in UK law by the Human Rights Act 1998 18

(1979) 2 EHRR 387 19

See: Re KB (Adult) (Mental Patient: Medical Treatment) (1994) 19 BMLR 144 20

See: B v Croydon Health Authority [1995] Fam 133; and R v Collins ex p Brady (2001) 58 BMLR 173 21

See: Tameside and Glossop Acute Services Trust v CH [1996] 1 FLR 762 22

Herczegfalvy v Austria(1993) 15 EHRR 437 – this may also apply to competent patients but a much higher standard applies

4

It is widely accepted that the four fundamental tenets of biomedical ethics are: respect for autonomy, non-

maleficence, pursuing beneficence and respecting justice23. Much of legal and ethical discourse

advocatesthe concept of autonomy as a sovereign principle of bioethics24 and indeed law.Autonomy as a

right is increasingly reflected in the „rights-based legalism‟ that has arisen by the amalgamation of human

rights and rights based critique25 in the UK.The right of autonomy may be drawn from several areas of the

common law such as criminal law26, tort law27 as well as, of course, human rights28 itself. The European

Convention necessarily expresses a respect for the right of autonomous liberty when providing freedoms

such as the rights to liberty29, expression30, religion31 and association32. This is arguably implicitly true of the

right to a fair trial33 which implies respect for liberty restricted only by due process.

The growing dominance of rights theory is unsurprising when one considers the matter in a social and

geopolitical context. An understanding of thedominance ofindividual autonomy and rights theory generally

may be drawn from a combination of social contract theory and the geopolitical and legal developments of

the UK, as well as much of the western world. Numerous rights and political theorists assert,

unsurprisingly,a close relationship between individual autonomy and the political organisation of society34.

Indeed, the notion of the autonomy may be derived from the basic interest of self-preservationoriginating in

the state of nature, as acknowledged by early Englishsocial contract theorists such as Hobbes35 and

Locke36. Though such theorists depart somewhat on their conception of self-preservation they similarly

conclude that the political legitimacy of the State resides in a collective acknowledgement of certain rights

applied and protected equally amongst itscitizens. Indeed, Gewirth aptly contends that rights are properly

23

See generally: Beauchamp TL, Childress JF. Principles of biomedical ethics, 3rd edition. (New York: Oxford University Press, 1989.) and Aschcroft, R et al. Principles of Health Care Ethics, second edition. (John Wiley & Sons: Chichester, 2007) 24

English, V et al. Autonomy and Its Limits: What Place for the Public Good. In McLean, S. First Do No Harm. (Ashgate Publishing: Hampshire, 2006) Ch8, pg117 25

Weller, P. Chapter 3: Lost in Translation: human rights and mental health law. In McSherry, B and Weller P. Rethinking rights-based mental health laws. (Oxford: Hart, 2010) p55 26

See for example: R v Brown et al. [1993] 2 All ER 75 on the role of consent in the criminal law. 27

See for example: requirements governing information provision, arising from claims in trespass to the person as seen in Chatterton v Gerson [1981] QB 432 28

See for one example: NHS Trust A v M; NHS Trust B v H [2001] 2 WLR 942 in which Article 8 has been construed as 'the right to personal autonomy' per Butler Sloss P, at 954. 29

European Convention on Human Rights 1950, Article 5 30

Ibid Article 10 31

Ibid Article 9 32

Ibid Article 11 33

Ibid Article 6 34

See generally: Dworking, R. Taking Rights Seriously. (London: Duckworth, 1977); Habernaus, J. Facticity and Validity (Frankfurt am Main, Suhrkamp, 1992); Rawls, J. Political Liberalism. (Oxford: Oxford University Press, 1992) 35

Hobbes, T. Leviathan [1651] Tuck, R Edition. (Cambridge: Cambridge University Press, 1996) 36

Locke, J. Two Treatises of Government [1680] Laslett, P Edition. (Cambridge: Cambridge University Press., 1988)

5

understood as a pre-condition of community37. Autonomy itself plays an essential role in democracy as a

deliberative process resting upon the free exchange of ideas and opinions. It is vital for liberal democracy

that the individual‟s right to self-determination be upheld which no doubt explains the rise ofliberalism and

human rights law in European constitutions38. One may also attribute this of course, to a recent history of

genocide and colonialism that infringed both autonomy and human dignity to its extremes39.Autonomy

construed as such renderssovereigntynot in the collective as a whole but rather in the individual as a right

holder. Indeed, it could be said that the community exists solely to better serve the rights of individuals.

Dworkin certainly seems to agree with this position when stating that “rights are best understood as trumps

over some background justification for political decisions that states a goal for the community as a whole40”.

The implications of rights theory in the context of detaining mental health patients for compulsory treatment

therefore seems to require a strong argument to justify any form of paternalism that would infringe the

states obligations to ensure autonomous freedom. Indeed, as Cavadino contends “rights theory demands a

liberal mental health law which allows compulsory psychiatric interventions only on the basis of very limited

criteria”41.Below I will discuss the application of rights theory in what appears to be the three primary mental

health scenarios.

The Dangerous Incompetent Patient

The qualification of preventing harm to others seems intuitively reasonable enough as well as being

compatible with rights theory and the notion of autonomy. Indeed, Feinburg refers to the respect for a

person‟s autonomy as “respect for his unfettered voluntary choice as the sole rightful determinant of his

actions except where the interests of others need protection from him”42. However, as Dworkin states such

a threat ought to be tangible and „vivid‟43 to merit action. This additional qualification is of further necessity

when one considers that empirical evidence demonstrates that a psychiatrist‟s assessment of danger does

37

Gewirth, A. The Community of Rights. (Chicago: The University of Chicago Press, 1996) 38

Weisstub, D. Pintos, G. Autonomy and Human Rights in Health Care: An International Perspective. (International Library of Ethics, Law, and the New Medicine, Vol 36, 2008) p80 39

I refer predominantly here to the Jewish Holocaust 40

Dworkin, R. „Rights As Trumps‟. In: Waldron, J (ed.) Theories of Rights. (New York: Oxford University Press, 1984) p153 41

Cavadino, M. A Vindication of the Rights of Psychiatric Patients. (Journal of Law and Society, vol. 24(2), 1997) p241 42

Feinberg, J. Harm to Self (Moral Limits of the Criminal Law, Vol 3). (Oxford University Press, 1986) pg68 43

Dworkin, R. Taking Rights Seriously (Harvard University Press, 1978) p11

6

not consistency amount to cogent evidence44. Nonetheless intervening on this qualification is justified with

respect to rights theory when genuine danger is present.

The Passive Incompetent Patient

Incapacity understood as the inability to understand, retain evaluate and communicate information45 seems

to render autonomy a moot point. Indeed, Foster contends that a lack of these conditions is the „antitheses‟

of autonomy46. Concurring, Grisso states that decisions lacking such characteristics “cannot be said to be

autonomous; they are…not meaningful decisions”47. Here the argument for paternalism is strong. Indeed,

Cavadino rightly asserts that rights theory betokens a degree of paternalism in the interest of those

incapable of enjoying full capacity in pursuit of maximising their positive freedom48. Feinburg concurs

asserting a „weak paternalism‟49 approach is necessary when a person‟s capacity renders their actions non-

voluntary. Arguably such a duty is also imposed by social contract theory as previously discussed,

especially under Rawls theory of egalitarian social justice50.

ThePassive Competent Patient: Abandoned to Autonomy?

In situations where a patient is deemed a danger Feinberg‟s above qualification for interference, derived

from Mill‟s harm principle51, seems both intuitively satisfactory and compliant with rights theory regardless

of competency. The matter of non-dangerous competent patients is quite another issue entirely. The

prospect of denying autonomy to a competent person seems fundamentally at odds with rights theory.

Bartlett rightly observes that “the violation of autonomy consequent on enforced treatment of a person with

capacity is considerable”52, further stating that “it is difficult to see that it should be provided on a patient

44

Cavadino, M. Mental Health Law in Context: Doctors‟ Orders? (Dartmouth Publishing Co Ltd, 1989) pp 99-100 45

See: Mental Capacity Act 2005, s3(1a-d) and Re C (Adult: Refusal of Medical Treatment) [1994] 1 All ER 819 46

Foster, C. Choosing Life, Choosing Death: The Tyranny of Autonomy in Medical Ethics and Law. (Hart Publishing: Oregon, 2009) p115 47

Grisso, T. and Appelbaum, P. S. Assessing competence to consent to treatment: A guide for physicians and other health professionals. (New York: Oxford University Press, 1998) p13 48

Cavadino, M. A Vindication of the Rights of Psychiatric Patients. (Journal of Law and Society, Vol 24, 1997) p242 49

Feinberg. J. Legal Paternalism in his Rights, Justice and the Bounds of Liberty: Essays in Social Philosophy (Princeton, NJ: Princeton University Press, 1980) 50

Rawls, J. A Theory of Justice (Oxford: Oxford University Press., 1972) 51

Mill, J. On Liberty (Everyman Edition: London, 1910) pg 68 52

Bartlett, P. The Test of Compulsion in Mental Health Law: Capacity, Therapeutic Benefit and Dangerousness as Possible Criteria. (Medical Law Review, vol. 11, 2003) p334

7

with capacity who refuses it”53.When treatment proposes to manipulate brain chemistry in order to alter

ones personality, intervention indeed seems a grotesque violation of autonomy.

There appears to be little recourse in rights theory where a patient is fully comprised of his cognitive

abilities except in an extension of weak paternalism that ultimately cheats the complexity of the situation by

rendering the competent, incompetent.Cavadino‟s argument for weak paternalism in the interest of

endorsing positive freedom does not seem to apply in situations where a patient retains his full capacity to

make reasoned decisions. To do so on the basis of rights theory seems somewhat contradictory with

respect to the sovereignty of autonomy. Rationality, though ordinarily indicative, is not held to be a

determinant of capacity rather it is the ability to understand and properly evaluate information given54.

Indeed, Dworkin asserts that “a right to do something should not be confused with doing the right thing”55.

Even in instances where plainly erroneous beliefs have factored into a decision, caused by mental

impairment, autonomy is not compromised so long as one can demonstrate a reasoned approach and

proper understanding of the facts and relevant ramifications of any given decision56. Furthermore, when

one considers that medicinal treatment often brings with it adverse effects without a guarantee of the

alleviation of the initial ailment, a decision to refuse such treatment may be both procedurally and

substantively rational. Consequently, the presumption in favour of negative freedom and autonomy ought to

remain a strong one.

A serious issue however must be considered at this interjector. Ought we, on the basis of ruthlessly

upholding the hegemony of autonomy, to abstain from aiding the mentally ill once deemed capable of

understanding circumstantial facts? When the man, comprised of his logical faculty but suffering with

severe depression, actively seeks to end his life, ought we to stand by and passively observe? Suicide is

not a crime57 and neither does UK law endorse Good Samaritan law such as that seen in the French Penal

Code58. We are neither compelled by law or rights theory to take active steps to rob an individual of this

autonomous decision. Indeed, rights theorists largely endorse the right to commit and request assistance in

53

Ibid 54

See for example: Re C (adult: refusal of medical treatment) [1994] 1 All ER 819 55

Dworkin, R. Taking Rights Seriously. (Duckworth: London, 1977) p188 56

Re C (adult: refusal of medical treatment) [1994] 1 All ER 819Per Thorpe J at 824 57

Suicide Act 1961, s1 58

French Penal Code, Art 223-6: “that whoever can prevent by its immediate action, without risk for him or to a third party either a crime or an offence against the integrity of a person, and does not, can be punished by five years of imprisonment and 100,000 Euros”

8

committing the act of suicidewhen decided upon by competent, autonomous people, in certain

circumstances59. Dworkin, commenting on the law preventing assisted suicide60believes the deprival of the

autonomous decision to end one‟s life contrary to one‟s values is “a devastating, odious form of tyranny”61.

Whilst one can imagine the validity of such an argument in circumstances where a competent person seeks

to end prolonged suffering due to terminal illness, it is quite another thing to abstain completely from

intervening when faced with an otherwise competent, mental health patient who wishes to kill themselves.

Herein lies the danger of the isolating effects of absolute autonomy. Do we not run the risk of abandoning

the mentally ill to their rights?

Care Ethics: The Limits of Autonomy and Reality of Vulnerability

Rights theory has been criticised on such premises and accusations of advocating an overly individualistic

perception of human beings. Indeed, Marx himself attacked rights theory on the ground that the rights

bearing individual is rendered an “isolated monad…withdrawn behind his private interests and whims and

separated from the community”62. Though rights theory compels the individual to respect the rights of his

fellow man the theory is certainly highly individualistic as seen previously with respect to Dworkin‟s theory

on rights as trumps against society‟s whims63. This is criticised as wholly unrealistic of human existence,

presupposing individuals with no social ties and an inflated concept of an unencumbered self64. The reality,

urge care ethicists, is that we are ignorant, vulnerable and interdependent individuals, deriving strength and

security from our social and personal relationships65. Though respecting the concept of autonomy, care

ethicists contend that it cannot be construed as wholly libertarian. Rather, autonomyought to be constructed

on the understanding that the individual finds himself at all times amongst a large number of social

practices, compassions, commitments and relationships with others66. Thus, as Herring observes the

59

Such as with those suffering from severe, terminal illness induced, pain. See for example the cases of R v DPP ex p Purdy [2009] UKHL 45 and R on the application of Nicklinson and Lamb v Ministry of Justice [2014] UKSC 38 60

Suicide Act 1961 Section 2(1) as amended by the Coroners and Justice Act 2009 s59(1) 61

Dworkin, R. Life’s Dominion. (Harper Collins: London, 1993) p 217 62

Marx, K. On the Jewish Question (1844)in Waldron, J. Nonsense Upon Stilts: Bentham, Burke, and Marx on the Rights of Man (London: Methuen,1987) p146 63

Dworkin, R. ‘Rights As Trumps’. In: Waldron, J (ed.) Theories of Rights. (New York: Oxford University Press, 1984) p153 64

Benhabib, S. Situating the Self. (London: Routledge, 1994) p219 65

Meyer, C. Cruel Choices: Autonomy and Critical Care Decision Making (18 Bioethics 104, 2004) 66

Reich, W. Encyclopaedia of Bioethics. (New York: Simon & Schuster, 1978) p219

9

“ethics of care…while not necessarily opposed to the idea of legal rights…are wary of their dominance in

the legal discourse, and the dangers that rights are used in an individualistic way”67.

With an over assertion of the rights of the individual and insufficient respect for his vulnerability rights theory

neglects that “respect for persons also involves taking account of both our connectedness and

interdependence”68. Rights viewed from the ethic of care therefore do not serve purely to protect the

individual but also recognise the norm of interlocking, mutually dependent relationships69. Indeed, when

one casts the mind back to social contract theory this seems an implicit fact of the need for social

integration. The very premise of social contract theory that gives rise to rights is indeed, our personal

vulnerability as individuals70. Turner aptly observes that “human and social rights are juridical expressions

of social solidarity, whose foundations rest in the common experience of vulnerability and

precariousness”71. Thus, the idea of autonomy as self-governance is not abandoned but rather

reconstructed in the contextual reality of social relationships and mutual vulnerability.

Care Ethics: The Passive Competent Patient

In the context of mental health patients that are passive and competent but suffering from severe mental

health issues care ethics takes the rigid autonomy of rights theory and applies it to the reality of such a

complex situation. As Verkerk puts it, care ethics recognises that “on the one hand patients are regarded as

individuals who have a strong interest in) freedom and non-interference; on the other hand many of them

have a desperate need for flourishing, viable relationships”72. Applying the care approach to the passive

competent patient who wishes to undertake detrimental action, the care ethicists seeks to develop a caring

relationship that would influence such a decision by way of fostering a caring relationship rather than

imposing custodial sanctions. Properly understood, whether someone is making an autonomous decisions

is not a mere matter of having the required capacity but also, a matter of having a sense of „self‟ that

supports a complete sense of flourishing that may be fostered by a caring relationship73. Verkerk asserts

67

Herring, J. Caring and the Law. (Oxford: Hart Publishing, 2013) p60 68

Verkerk, M. A Care Perspective on Coercion and Autonomy’. (Bioethics, vol. 13, no. 3/4, 1999) p366 69

West, R. Caring for Justice (New York University Press, 1997) p356 70

Hobbes, T. Leviathan [1651] Tuck, R Edition. (Cambridge: Cambridge University Press, 1996) 71

Turner, B. S. Vulnerability and Human Rights. (University Park, Pennsylvania: The Pennsylvania University Press, 2006) pp26-27 72

Verkerk, M. A Care Perspective on Coercion and Autonomy’. (Bioethics, vol. 13, no. 3/4, 1999) p359 73

Ibid at p365

10

that “compassionate interference can be seen as an expression of this kind of caring behaviour”74. In the

context of the suicidal man that rights theory finds a difficulty wrestling with, care ethics obliges us, as

mutually dependant individuals to intervene when we can do so75. Absolute respect of patient‟s autonomy,

as Verkerk puts it, “often means that they cannot be given the help they so desperately need”76.

Conclusion

It has been shown that both rights theory and care ethics draw their convictions from the makeup of society

and our relation to each other as coexisting individuals. Though protecting the individual rights of each

person against his fellow man and the collective as a whole, rights theory may be justly interpreted as

overly individualistic, neglecting the reality of the mutual vulnerability that underpins the need for society. A

full adoption of autonomy has been shown to pose an isolation effect thatmay serve to abandon vulnerable

people to their rights and a breakdown of the communal responsibility to safeguard and endorse the

autonomy of such people. Both theories incorporate important concepts; it cannot be doubted that

autonomy is of the upmost importance in liberal society for it facilitates both political and personal

prosperity. However, autonomy has its limits. By considering it as situated rather than absolute we are able

to accommodate the vulnerability of patients. Illness as Baum highlights reveals “the human

subjectivityexists as a sensible affective, suffering, aging body, whose presence and proximity alone give

meaning the term vulnerability as limiting ones autonomy by revealing it finitude”77. Even competent

individuals cannot be said to make their decisions independent of social and relational factors. Therefore

the importance of these variables ought to be recognised and developed in such a way that promotes both

effective treatment and fulfilling lives. By recourse to both rights and care ethics we are able to formulate a

synthesis that both respects the severe importance of autonomy yet acknowledges that human beings are

74

Ibid p366 75

Engster, D. The Heart of Justice: Care Ethics and Political Theory. (Oxford: Oxford University Press, 2007) p 53 76

Verkerk, M. A Care Perspective on Coercion and Autonomy’. (Bioethics, vol. 13, no. 3/4, 1999) p359 77

Baum, MB. The necessary articulation between autonomy and vulnerability (Working Papers, Research Projects, VII, Centre for Ethics and Law: Copenhagen, 1997) p

11

vulnerable and require aid in times of need. Subscription to one or the other may lead to an over emphasis

of either concept, at the detriment of patients and indeed, society as a whole.

Reference List

International Law

European Convention on Human Rights 1950

UK Statute

Anti-terrorism, Crime and Security Act 2001

Human Rights Act 1998

Mental Health Act 1983

Mental Health Act 2007

Mental Capacity Act 2005

Suicide Act 1961

Non UK Statute

French Criminal Code, Art 223-6

Cases

B v Croydon Health Authority [1995] Fam 133

Chatterton v Gerson [1981] QB 432

Faurisson v. France, U.N. Human Rights Comm., U.N. Doc.CCPR/C/58/D/550/1993 (Dec. 16, 1996)

Herczegfalvy v Austria (1993) 15 EHRR 437

NHS Trust A v M; NHS Trust B v H [2001] 2 WLR 942

Re C (Adult: Refusal of Medical Treatment) [1994] 1 All ER 819

R v Collins ex p Brady (2001) 58 BMLR 173

12

R v Brown et al. [1993] 2 All ER 75

R v DPP ex p Purdy [2009] UKHL 45

R on the application of Nicklinson and Lamb v Ministry of Justice [2014] UKSC 38

Re KB (Adult) (Mental Patient: Medical Treatment) (1994) 19 BMLR 144

Re T (Adult: Refusal of Treatment) [1993] Fam. 95

Tameside and Glossop Acute Services Trust v CH [1996] 1 FLR 762

Winterwerp v Netherlands (1979) 2 EHRR 387

Books

Beauchamp TL, Childress JF. Principles of biomedical ethics, 3rd edition. (New York: Oxford

University Press, 1989.)

Cavadino, M. Mental Health Law in Context: Doctors‟ Orders? (Dartmouth Publishing Co Ltd, 1989)

Dworkin, R. Life‟s Dominion. (Harper Collins: London, 1993)

Dworkin, R. Taking Rights Seriously. (Duckworth: London, 1977)

English, V et al. Autonomy and Its Limits: What Place for the Public Good. In McLean, S. First Do No Harm.

(Ashgate Publishing: Hampshire, 2006)

Engster, D. The Heart of Justice: Care Ethics and Political Theory. (Oxford: Oxford University Press, 2007)

Feinberg. J. Legal Paternalism in his Rights, Justice and the Bounds of Liberty: Essays in Social

Philosophy (Princeton, NJ: Princeton University Press, 1980)

Feinberg, J. Harm to Self (Moral Limits of the Criminal Law, Vol 3). (Oxford University Press, 1986)

Foster, C. Choosing Life, Choosing Death: The Tyranny of Autonomy in Medical Ethics and Law. (Hart

Publishing: Oregon, 2009)

Gewirth, A. The Community of Rights. (Chicago: The University of Chicago Press, 1996)

Grisso, T. and Appelbaum, P. S. Assessing competence to consent to treatment: A guide for physicians

and other health professionals. (New York: Oxford University Press, 1998)

Herring, J. Medical Law and Ethics, 5th edition. (Oxford: Oxford University Press, 2014)

Herring, J. Caring and the Law. (Oxford: Hart Publishing, 2013)

Hobbes, T. Leviathan [1651] Tuck, R Edition. (Cambridge: Cambridge University Press, 1996)

13

Jackson, E. Chapter 6: Mental Health Law. Medical law: text, cases and materials. (Oxford: Oxford

University Press, 2013)

JJC, Smart. A Utilitarian System of Ethics, in Smart and Williams Utilitarianism: For and Against

(Cambridge University Press, 1973)

Locke, J. Two Treatises of Government [1680] Laslett, P Edition. (Cambridge: Cambridge University

Press., 1988)

Marx, K. On the Jewish Question (1844) in Waldron, J. Nonsense Upon Stilts: Bentham, Burke, and Marx

on the Rights of Man (London: Methuen, 1987

Mill, J. On Liberty (Everyman Edition: London, 1910)

Rawls, J. A Theory of Justice (Oxford: Oxford University Press., 1972)

Reich, W. Encyclopaedia of Bioethics. (New York: Simon & Schuster, 1978)

Turner, B. S. Vulnerability and Human Rights. (University Park, Pennsylvania: The Pennsylvania University

Press, 2006)

Weller, P. Chapter 3: Lost in Translation: human rights and mental health law. In McSherry, B and Weller P.

Rethinking rights-based mental health laws. (Oxford: Hart, 2010

West, R. Caring for Justice (New York University Press, 1997)

Journals

Bartlett, P. The Test of Compulsion in Mental Health Law: Capacity, Therapeutic Benefit and

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