Academic journal article Issues in Law & Medicine

Does Autonomy Require Informed and Specific Refusal of Life-Sustaining Medical Treatment

Academic journal article Issues in Law & Medicine

Does Autonomy Require Informed and Specific Refusal of Life-Sustaining Medical Treatment

Article excerpt

Does Autonomy Require Informed and Specific Refusal of Life-Sustaining Medical Treatment?

Any social order that prizes individual autonomy is committed to collectively informing its autonomous members. A good working definition of "autonomy" is "self-determining free choice." What distinguishes "choice" from mere appetite or desire is deliberation upon known, available options and their probable consequences, and a practical equilibrium of external pressures for and against those options.

Even the most autonomu-driven society will conclude that some of its members - e.g., infants and persons with mental disabilities - are unable to choose for themselves. Autonomy for persons who are incompetent is inapposite because they are incapable of exercising free choice. Thus constitutional rights derived from our commitment to autonomy - which some courts say include the right to forego life sustaining medical treatment - are exercisable only through the "knowing and voluntary" choices of competent individuals.(1) Distinguishing exactly who is competent, and whether particular proposals of competent persons are informed free choices, are collective decisions. "Collective" means society, acting through its common agent, the state and its laws. The law, and not those individuals, decides whether an effective exercise is made. At first glance then, autonomy would seem to require demonstrated assurances to society that any refusal of life-sustaining treatment is with the informed consent of the competent person affected.

Deciding what those assurances entails prompts a look at other aspects of our common life in relation to autonomy. We possess an abundance of examples. The marketplace is our dominant metaphor for collective existence, and not primarily for goods and services. Our most abiding market commitment is actually to the marketplace of ideas that a system of free expression implies. This prevailing first amendment metaphor aptly captures our constitutional law not only of free speech but also of church and state. The Supreme Court's Religion Clause jurisprudence has been little more than elaboration of religious autonomy, in the specific sense that what individuals believe about religion, if they believe anything at all, is necessarily a matter of individual choice. This choice may not be burdened by even faint traces of government endorsement of one faith, many faiths, or faith generally over disbelief.(2) The government here, as in other areas in which individual autonomy prevails, must be neutral about the outcomes of individual choices.

But neutrality does not mean passivity. Ours is a regime with a robust (if imperfect) commitment to individual autonomy, yet that government is busy indeed. The business of our government is not only to make trains run on time and to fill potholes. Even the most libertarian of economic theorists, where the implications of autonomy have been most fully explored, recognize that we live in a world of inadequate information. To the extent that is true, ours cannot be a world of autonomous free choice. Many of them recognize a potentially very large government role in empowering individuals, through information provision, to make autonomous choices. This is so despite these theorists' general skepticism of government which is such that, if Uncle Sam said at midnight that it was dark outside, they would go to the window to check. (The lawyer of course would ask Sam about the latitude and time of day and year.)

Government's role here is hardly limited to consumer advisories. The massive redistributive policies of the modern welfare state are most often justified as providing the material preconditions to individual pursuit of the individually chosen good life. Our massive system of compulsory public education is thought compatible with autonomy because it provides the nonmaterial preconditions to a life of intelligent, voluntary, and knowing choices. …

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