Marj Milburn - Informed Choice of Medical Services: Is the Law Just?

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Informed Choice of Medical Services: Is the Law Just?

For my Mother

First published 2001 by Ashgate Publishing

Reissued 2018 by Routledge

2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

711 Third Avenue, New York, NY 10017, USA

Routledge is an imprint of the Taylor & Francis Group, an informa business

Copyright Marj Milburn 2001

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

Notice:

Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe.

Publishers Note

The publisher has gone to great lengths to ensure the quality of this reprint but points out that some imperfections in the original copies may be apparent.

Disclaimer

The publisher has made every effort to trace copyright holders and welcomes correspondence from those they have been unable to contact.

A Library of Congress record exists under LC control number: 00111407

ISBN 13: 978-0-754-61198-1 (hbk)

ISBN 13: 978-1-315-20444-4 (ebk)

Contents

Guide

Arato v Avedon 5 Cal 4th 1172, 23 Cal Rptr 2d 131, 858 P2d 598 (1993).
Battersby v Tottman and the State of South Australia (1985) 37 SASR 524.	n 19
Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 (QBD); [1957] 1 WLR 582.
Bouvia v Superior Court (Glenchur) 225 Cal Rptr 297 (Cal App 2 Dist 1986).
Breen v fVilliams 138 ALR 259.
Canterbury v Spence 464 F 2d 772 (1972) (US Ct of Apps, DC Cir).
Chappel v Hart [1998] HCA 55.
Chatterton v Gerson [1981] 1 QB 432 (QBD).
D v S (1981) 93 LSJS 405; 93 LS (SA); JS 405 (SASC).
F v R (1983) 33 SASR 189.
Gover v the State of South Australia and Perriam (1985) 39 SASR 543.
Hart v Herron Unreported, Fisher J, Sup Ct NSW, 11 July 1980; (1984) Aust Torts Reports 80201.
Lee v State of Oregon (1995) Civil No 94-6467-Ho D Ore.	n 5
Natanson v Kline 354 P 2d 670 (1960).
Quill v Vacco: Compassion in Dying (Gluckberg v Washington ) 117 S Ct 2293 (1997).	n 5
Regina v Bolduc and Bird (1967) 61 DLR (2d) 494; (1967) 63 DLR (2d) 82.
Reibl v Hughes (1980) 114 DLR (3d) 1 (Can SC), 2 SCR 880.
Rodriguez v British Columbia (Attorney General ) (1993) 107 DLR (4th) 342; (1993) 7 WWR641.	n 5
Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625 (HCA).
Salgo v Leland Stanford Jr University Board of Trustees 154 Cal App 2d 560, 317 P 2d 170 (Dist Ct App 1957).
Schloendorff v Society of New York Hospital 105 NE 92 (1914) (NY Ct of Apps).
Scott v Bradford 606 P 2d 554 (Okla 1980).	n 10
Sidaway v Governors of Bethlem Royal Hospital and Others [1985] 1 AC 871; 1 All ER643 (HL).
Whitehousev Jordan [1980] 1 All ER 650 (HL).

In this book I argue the case for external regulation of the medical community in order to protect the rights and safety of people receiving medical treatment. The evidence supporting this view is extensive and disturbing, particularly from the point of view of the person who suffers when their right to informed choice is violated. This is a major social problem in western societies and requires urgent resolution.

This work is dedicated to my mother, Shirley, who died during the preparation of the manuscript. Her belief in the relevance of this project to womens lives remains inspiring. Thank you to my sister, Zelda, for her encouragement and support, and to my friends and colleagues, particularly Beth Bennett and Marie West. Thank you to Paul McNeill and Loane Skene for taking valuable time to comment on early drafts of the first two chapters. This is deeply appreciated. Thank you also to my neighbour Jackie, who so generously made herself available at all times for discussions about work in progress. Finally, thank you to Peter Singer, without whose encouragement I would not have begun this project.

While much has been written in the past thirty years, particularly in the United States, about the moral right to informed choice of medical services changes to medical practice have been limited and medical authoritarianism, as a culture, remains deeply entrenched in western societies. Why is this still a problem? What is the solution? And what role should the law play in this solution?

In my view, medical authoritarianism, and its failure to recognise the right to informed choice, is a result of the traditional western philosophical, political, legal and scientific focus on rationality as the major influence on human behaviour. This ignores the central role of a persons values and beliefs in making decisions and choices. It also ignores the mass of historical evidence that power corrupts, breaking down the usual inhibitions that restrain the aggressive instincts inherent in human nature. The illusion that rationality dominates human affairs is therefore a dangerous one in that it fails to protect vulnerable members of a community from rights violations.

How extensive, then, is this problem? Relevant evidence spans more than a century, and demonstrates that women, as well as other disempowered groups, have been subjected to extensive violations of their right to informed choice, often with extremely serious consequences. Overall, the evidence is disturbing, profiling a major social problem requiring urgent resolution.

While the following discussion focuses on the exploitation of women by patriarchal medicine, this is not intended to discount the experiences of other groups whose right to self-determination is ignored by the medical community. Rather, it is intended to illustrate the claim that the abuse of power, masked by an over-confidence in the role of rationality in human behaviour, lies at the heart of the chronic problem of un informed choice. As women make up half of the human race, their oppression cannot be explained in terms of dominant groups versus minority groups. Rather, the hostility directed toward women is centred on perceived difference, which acts as a largely unconscious excuse to indulge in the exercise of power over others who are, or who can be made, vulnerable.

Many other groups and individuals have also been discriminated against in this way by those who have the advantage of power. Indigenous Australians, while living in a wealthy country, suffer from a standard of health equivalent to that of the most disadvantaged third world nation. Medical practitioners have frequently treated, or refused to treat, these people in such a blatantly discriminatory manner that some groups have established their own health care services in an attempt to retain a sense of dignity. Health not only involves a persons physical state, but also their sense of identity and level of self-esteem. Shaming the entire Australian community, a recent court decision involving the stolen generation of indigenous Australians considered a thumbprint on a consent form acceptable evidence of a mother giving permission for her child to be taken from her by an all-powerful, white government. Again, difference is used as an excuse to project internal hostilities onto a vulnerable Other.

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