The Concept of the Patient’s Autonomy: From the Vaults of Civil Law

Abstract

The concept of patient’s rights itself was fairly known before the last four or five decades, and medical malpractice of all kinds made the aggrieved party to seek redress at a court; but no special legislation, apart from rare exceptions, has ever existed to anchor the patient’s rights before the late 20th century. In the civil law tradition of the 20th century, especially its earlier decades, doctors could be held criminally or civilly liable for a wide variety of malpractice, including unauthorised medical intervention or divulgation of patient’s information, though such provisions did not develop actual rights, were quite general in their nature, and were individually assessed by the courts in each case. Within in the gradual change in the doctrines of medical law, the term “autonomy”, shaping the patient’s right to decide what medical interventions could or could not be performed upon his body, intervened into the existing legal scholarship, which was later augmented with various issues, such as access to medical records of the patient, refusal of blood transfusion, participation in medical experiments, deciding upon end-of-life situations or relating to various reproductive law considerations, not always permitted by national law. Many of these rights are much older than the concept of patient’s autonomy themselves, and have developed in the case law which itself has originated from lawsuits against doctors and hospitals for acts, being nearly obscure in the existing legal doctrine, such as unauthorised medical experiments. The given paper is aimed to discuss the academic development and overall gist of the patient’s right to autonomy, as well as some of its early interpretations in civil law doctrine. Keywords: patient’s rights, medical malpractice, theory of law, medical law, patient autonomy, civil law.