Abstract
This paper takes the form of a polemic and thought experiment. The starting point is that, if medical law’s claims to place autonomy at the heart of the enterprise are to be taken seriously, then autonomy either needs to be considered a recoverable harm, or the most egregious infringements should be subject to the criminal law. This might particularly be the case where a doctor deliberately attempts to modify the patient’s decision by failing to disclose information that they know that the patient would find significant. The article considers medical law’s relationship with autonomy, before applying the criminal law – in the form of the analogous situation of defendants who deliberately fail to disclose HIV+ status to their sexual partners. What we find is a distinct difference in the way that autonomy is seen by medical and criminal law, although both are equally unsatisfactory.
Highlights
It is easy to get frustrated with medical law
If deception leads to a lack of ability to provide informed consent to the risk of transmission of HIV and consent to that transmission is vitiated, we argue that a consistent application of whatever model of autonomy and consent is used by the court should lead it to conclude that the consent to sexual intercourse is vitiated
We wondered whether the criminal law principles might provide a more suitable mechanism by which we could address such issues, while providing a more effective and convincing account of autonomy
Summary
It is easy to get frustrated with medical law. Many bold statements are made in the course of its development, and one of these is that autonomy is the defining principle.1 Yet how Medical Law International 21(4)we go about protecting a person’s autonomy when that autonomy has clearly been infringed is still much-discussed.
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