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

Morgan, Derek and Veitch, Kenneth (2004) Being Ms B: B, autonomy and the nature of legal regulation. Sydney Law Review, 26 (1). pp. 107-130. ISSN 0082-0512

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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.

Item Type: Article
Additional Information: 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.
Schools and Departments: School of Law, Politics and Sociology > Law
Depositing User: Kenneth Veitch
Date Deposited: 06 Feb 2012 20:15
Last Modified: 02 Jul 2019 18:34

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