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Being Ms B: B, autonomy and the nature of legal regulation

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journal contribution
posted on 2023-06-08, 05:37 authored by Derek Morgan, Kenneth VeitchKenneth Veitch
In this article, we question the apparent simplicity of medical law's construction of 'life and death' cases as a clash between the sanctity of life principle and patient autonomy. Our main purpose in doing so is to try to understand more fully the nature of law's regulation of the existence and non-existence of life. Specifically, we argue that, by broadening the understanding of autonomy in this area beyond a simple concern for patients' rights and self-determination, to include a focus on the individual generally, it becomes possible to identify some of the legal practices that are central to the manner in which law regulates the threshold between life and death. Through an analysis of a recent case in English law--Re B (an adult: refusal of medical treatment)--(although Australian jurisdictions presently disclose no similar, authoritative case, ours presently is almost an arbitrary choice)--we demonstrate the central role played in this regulation by tests for mental capacity, questions of character, explanation, and imagination. We conclude that medical law, at least in this context, can be theorised as a normalising practice--one in which the determination of norms often occurs through patients.

History

Publication status

  • Published

File Version

  • Published version

Journal

Sydney Law Review

ISSN

0082-0512

Publisher

Sydney Law School

Issue

1

Volume

26

Page range

107-130

Pages

24.0

Department affiliated with

  • Law Publications

Notes

The author's contribution to this article was 75%. The central idea and argument are his own. The structure of the article was jointly decided. He wrote sections 4 and 6, and most of section 5.

Full text available

  • Yes

Peer reviewed?

  • Yes

Legacy Posted Date

2012-02-06

First Open Access (FOA) Date

2017-05-12

First Compliant Deposit (FCD) Date

2017-05-12

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