Which Autonomy for Bioethics

1
Which Autonomy for Bio-ethics?

• M. Wallack

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Autonomy as a Bioethics Principle

• Principlism has become the dominant school of
  bioethical practice
• Patient Autonomy is the de facto-first principle
• Autonomy is equated with informed consent and is
  a legal requirement

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Autonomy Problems

• Some patients may not want or be capable of
  participation in choice of treatment
• Unwanted or ineffective procedural autonomy may
  undermine trust and benevolence
• Dependence is the unavoidable consequence of
  illness

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Autonomy Paradox

• As health intervention and care become more
  important to the patient, capacity for autonomy
  by the patient becomes less possible
• But Ought Implies Can

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Source of the Problem

• Democratization of culture has encouraged
  distrust of institutional and formal power
  holders
• Medical science and practice are based on the
  assumption that knowledge and expertise
  legitimate inequality but..
• The Principle of Autonomy as understood seems to
  be inconsistent with such an assumption

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Which Autonomy for Bioethics?

• Bio-ethicists agree that there are a variety of
  conceptions of autonomy
• Yet the standard view accepts informed consent as
  operationalized autonomy
• Agreeing to Disagree on the further content of
  autonomy leads to the Paradox of Autonomy

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Three Conceptions of Autonomy

• Kant moral autonomy
• Mill utilitarian individualism
• Locke fiduciary trust

8
Kant

• Kantian moral autonomy
• Will as a causal power as distinct from desire,
  preference, force, divine power
• Form categorical imperative which is Act so as
  to allow the principle of your action to be one
  everyone could follow
• Content impartial maxim such as Tell the truth
  
• An alternative to prudence, religion, relativism

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Kant

• Informed consent does not equal autonomy since
  the ground of consent is what makes an action
  autonomous or not (heteronymous)
• An act based on sympathy or respect for the rules
  of an institution or law not autonomous unless
  also a moral duty
• Not equivalent to any procedural account since it
  is intended as an standpoint from which to assess
  procedures
• One person cannot produce or limit the autonomy
  of another person

10
Mill

• Self-regarding conduct for persons in possession
  of their faculties ought not to be constrained
• Consent the only means to suspend this
  obligation of non-interference in self-regarding
  conduct among adults a contract model
• Protection for such conduct based upon utility of
  individualism its social benefit

11
Mill

• Self-direction might be either beneficial or
  harmful to the individual chooser
• Non-interference in self-regarding conduct not a
  sign of respect for the particular person
• Millian patient autonomy implies indifference to
  the outcome of choice for the individual for the
  sake of the expected social benefit derived from
  the resulting increased variety of choices made

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Kant and Mill

• Kantian and Millian autonomy are distinct and not
  compatible
• Kantian autonomy at stake in bioethics is
  primarily that of caregiver in response to
  inevitable dependence created by illness
• Dissolution of Autonomy paradox requires a change
  in perspective from individual to social
  principles as Kantian norms

13
Kant and Mill

• Millian individualism argument less plausible as
  severity of illness increases and is therefore
  subject to Autonomy Paradox
• Utilitarian considerations are the default
  alternative principle for this account when the
  conditions necessary for individual choice in
  self-regarding conduct do not obtain
• But social utility principle is the opposite of
  individual self-direction

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Locke Fiduciary Trust

• Autonomy based on consent Lockes alternative to
  paternal authority in politics
• Consent not individual express consent in
  politics
• Tacit consent in a representative system under a
  rule of law
• A consent to a fiduciary trust rather than
  supervisory participation in decision making

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A Fiduciary Trust Definition

• Supreme Court of Canada
• 1992 2 S.C.R. Norberg v. Wynrib 226
  
• A fiduciary relationship is marked by the
  following characteristics
• (1) the fiduciary has scope for the exercise of
  some discretion or power
• (2) the fiduciary can unilaterally exercise that
  power or discretion so as to affect the
  beneficiary's legal or practical interests and
• (3) the beneficiary is peculiarly vulnerable or
  at the mercy of the fiduciary holding the
  discretion or power.
• A physician owes his or her patient the classic
  duties associated with a fiduciary relationship
  -- "loyalty, good faith, and avoidance of
  conflict of duty and self-interest".

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Implications of Fiduciary RelationAccording to
Norberg v. Wynrib

• Fiduciary obligations "must be reserved for
  situations that are truly in need of the special
  protection that equity affords
• The defenses based on the alleged fault of the
  plaintiff, so pressing in tort, may carry little
  weight when raised against the beneficiary of a
  fiduciary relationship.
• Equity has always held trustees strictly
  accountable in a way the tort of negligence and
  contract have not.
• Foreseeability of loss is not a factor in
  equitable damages.
• Certain defenses, such as mitigation, may not
  apply.

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Lockian Autonomy in Bioethics

• A fiduciary relationship between patient and
  caregivers that is based on consent and
• Subject to explicit constraints of a legal
  framework
• Limited by the goals of preservation and
  restoration of health and the alleviation of
  suffering
• Exercised within the boundaries set by the
  society as a whole and professional standards

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Features of Lockian Autonomy

• The details of authorized care not spelled out
  but subject to veto by patient
• Trust is formal rather than personal and episodic
  rather than continuous
• Effective care creates a duty to cooperate in
  treatment

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Limits and Problems of Lockian Autonomy

• Lockian autonomy is legitimated dependence rather
  than self direction
• Inequality in capabilities is assumed as a
  natural and unavoidable fact of life
• Serious illness, frailty and some other
  conditions undermines the presumption that
  consent is informed or freely given
• In such circumstances, the participant society
  becomes the effective consenting party by its
  establishment of legal and procedural norms that
  define standards of care
• Do common interests in the goals of health care
  provide a sufficient support or the individuals
  who are least able to deny or define the content
  of consent?