Personality, Privacy and Autonomy in Medical Law

Abstract

Chapter 10 considers how the concepts of autonomy and dignity have developed in UK medical law. The law stands at a crossroads. The European Court of Human Rights holds that autonomy is an important underlying aspect of the right to respect for private life, and that dignity itself underpins the entire Convention, but without adequately defining these concepts. Protection of autonomy through dignity is one option. Controversial House of Lords decisions have purported to promote interests in autonomy and dignity through the negligence action. It is questionable however whether dignitarian-based models are based on principle. The concept of “dignity” is unclear and controversial. The current concer n with patient autonomy should not dominate personality rights in medical law. On the question whether a revitalised actio iniuriarum (or action of solatium for hurt to personality) could give appropriate effect to patients’ rights, Chapter 10 points to many practical deficiencies in the application of the action (“assuming it exists”) in a medical context, argues that it is probably too early to say whether the action can or will be developed by the courts, but concludes that there is scope for such a development. Since autonomy has been recognised as a human right, adequate remedies must be found for it.