Autonomy, Informed Consent and Medical Law

Alasdair Maclean analyses the ethical basis for consent to medical treatment, providing both an extensive reconsideration of the ethical issues and a detailed examination of English law. Importantly, the analysis is given a context by situating consent at the centre of the healthcare professional–patient relationship. This allows the development of a relational model that balances the agency of the two parties with their obligations that arise from that relationship. That relational model is then used to critique the current legal regulation of consent. To conclude, Alasdair Maclean considers the future development of the law and contrasts the model of relational consent with Neil Manson and Onora O’Neill’s recent proposal for a model of genuine consent.

Having qualified in medicine and worked clinically in both England and New Zealand, Alasdair Maclean studied law and became a lecturer in medical law at the University of Glasgow. He is now a senior lecturer at the University of Dundee.

This series of books was founded by Cambridge University Press with Alexander McCall Smith as its first editor in 2003. It focuses on the law’s complex and troubled relationship with medicine across both the developed and the developing world. In the past twenty years, we have seen in many countries increasing resort to the courts by dissatisfied patients and a growing use of the courts to attempt to resolve intractable ethical dilemmas. At the same time, legislatures across the world have struggled to address the questions posed by both the successes and the failures of modern medicine, while international organisations such as the WHO and UNESCO now regularly address issues of medical law.

It follows that we would expect ethical and policy questions to be integral to the analysis of the legal issues discussed in this series. The series responds to the high profile of medical law in universities, in legal and medical practice, as well as in public and political affairs. We seek to reflect the evidence that many major health-related policy debates in the UK, Europe and the international community over the past two decades have involved a strong medical law dimension. Organ retention, embryonic stem-cell research, physician-assisted suicide and the allocation of resources to fund healthcare are but a few examples among many. The emphasis of this series is thus on matters of public concern and/or practical significance. We look for books that could make a difference to the development of medical law and enhance the role of medico-legal debate in policy circles. That is not to say that we lack interest in the important theoretical dimensions of the subject, but we aim to ensure that theoretical debate is grounded in the realities of how the law does and should interact with medicine and healthcare.

General Editors

Editorial Advisory Board

Marcus Radetzki, Marian Radetzki, Niklas JuthGenes and Insurance: Ethical, Legal and Economic Issues 978 0 521 83090 4

Ruth MacklinDouble Standards in Medical Research in Developing Countries 978 0 521 83388 2 hardback 978 0 521 54170 1 paperback

Donna Dickenson Property in the Body: Feminist Perspectives 978 0 521 86792 4

Matti Häyry, Ruth Chadwick, Vilhjálmur Árnason, Gardar Árnason The Ethics and Governance of Human Genetic Databases: European Perspectives 978 0 521 85662 1

Ken Mason The Troubled Pregnancy: Legal Wrongs and Rights in Reproduction 978 0 521 85075 9

Daniel Sperling Posthumous Interests: Legal and Ethical Perspectives 978 0 521 87784 8

Keith SyrettLaw, Legitimacy and the Rationing of Health Care 978 0 521 85773 4

Alasdair MacleanAutonomy, Informed Consent and Medical Law: A Relational Challenge 978 0 521 89693 1

Alasdair Maclean

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Published in the United States of America by Cambridge University Press, New York

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Information on this title: www.cambridge.org/9780521896931

© Alasdair Maclean 2009

This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.

First published 2009

Printed in the United Kingdom at the University Press, Cambridge

A catalogue record for this publication is available from the British Library

Library of Congress Cataloguing in Publication data

Maclean, Alasdair, M Jur.
 Autonomy, informed consent and medical law : a relational challenge /  Alasdair Maclean.
  p. cm. – (Cambridge law, medicine, and ethics)
 Includes bibliographical references and index.
 ISBN 978-0-521-89693-1 (hardback)
 1. Informed consent (Medical law) – England. I. Title. II. Series.
 KD3410.I54M335 2008
 344.4204′12–dc22   2008049118

ISBN 978-0-521-89693-1 hardback

Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

This book is dedicated to my mother and the memory of my father.

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