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Protecting Patients from their Bad Decisions: Rebalancing Rights, Relationships, and Risk

Cave, Emma

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Authors



Abstract

Patients have a right to autonomy that encompasses making medical decisions that others consider ‘bad’. The ambits of this right in law and clinical practice are explored in this article, which describes an expansion of welfare protections across different aspects of medical law and explores their justifications and implications. In England and Wales, the Mental Capacity Act 2005 sets out protections for those who fall within its definition of incapacity. Those who retain capacity are ostensibly free to make decisions others consider unwise. But the decisions of those with borderline capacity; those whose decisions conflict with the public interest in protecting the patient from harm; and those considered ‘vulnerable’ are, in circumstances explored in this article, susceptible to override. The article explores the effects of these developments on the relationship between patients’ autonomy rights and clinicians’ responsibilities.

Citation

Cave, E. (2017). Protecting Patients from their Bad Decisions: Rebalancing Rights, Relationships, and Risk. Medical Law Review, 25(4), 527-553. https://doi.org/10.1093/medlaw/fww046

Journal Article Type Article
Acceptance Date Nov 30, 2016
Online Publication Date Jan 11, 2017
Publication Date Nov 1, 2017
Deposit Date Nov 30, 2016
Publicly Available Date Jan 11, 2019
Journal Medical Law Review
Print ISSN 0967-0742
Electronic ISSN 1464-3790
Publisher Oxford University Press
Peer Reviewed Peer Reviewed
Volume 25
Issue 4
Pages 527-553
DOI https://doi.org/10.1093/medlaw/fww046
Keywords Autonomy, Capacity, Consent, Necessity, Paternalism, Vulnerability.

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Copyright Statement
This is a pre-copyedited, author-produced version of an article accepted for publication in Medical Law Review following peer review. The version of record Cave, Emma (2017). Protecting Patients from their Bad Decisions: Rebalancing Rights, Relationships, and Risk. Medical Law Review 25(4): 527-553 is available online at: https://doi.org/10.1093/medlaw/fww046







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