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    Should Lost Autonomy be Recognised as Actionable Damage in Medical Negligence Cases?

    Purshouse, Craig Jonathan

    [Thesis]. Manchester, UK: The University of Manchester; 2016.

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    Abstract

    It has been suggested by some commentators that the ‘real’ damage (as opposed to that pleaded) in the cases of Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 and Chester v Afshar [2005] 1 AC 134 was the claimant’s lost autonomy. Arguments have consequently been put forward that lost autonomy either already is or should be recognised as a new form of actionable damage in medical negligence cases. Given the value placed on respecting patient autonomy in medical law and bioethics, it might be thought that such a development should be welcomed. But if lost autonomy is accepted as a new form of damage in negligence, it will not be confined to the two scenarios that were present in those cases and it may be inconsistent with other established negligence principles. This thesis considers whether lost autonomy ought to be recognised as a new form of damage in negligence and concludes that it should not. A close textual analysis of Rees and Chester is undertaken in order to determine whether a ‘lost autonomy’ analysis actually provides the best explanation of those two cases. I then look at how the concepts of autonomy and harm should be understood to determine whether, ethically speaking, to interfere with someone’s autonomy is to cause them harm. The final part of the thesis considers important doctrinal tort law considerations that have been overlooked in the medical law literature. I argue that the nature of autonomy means that it cannot coherently be considered actionable damage within the tort of negligence and that recognising a duty of care to avoid interfering with people’s autonomy would be inconsistent with the restrictive approach the courts take to recovery for psychiatric injury and economic loss. My ultimate conclusion is that the benefits of allowing such claims do not outweigh the undermining of established principles that would ensue if lost autonomy were recognised as a form of actionable damage in negligence.

    Layman's Abstract

    It has been suggested by some commentators that the ‘real’ damage (as opposed to that pleaded) in the cases of Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 and Chester v Afshar [2005] 1 AC 134 was the claimant’s lost autonomy. Arguments have consequently been put forward that lost autonomy either already is or should be recognised as a new form of actionable damage in medical negligence cases. Given the value placed on respecting patient autonomy in medical law and bioethics, it might be thought that such a development should be welcomed. But if lost autonomy is accepted as a new form of damage in negligence, it will not be confined to the two scenarios that were present in those cases and it may be inconsistent with other established negligence principles. This thesis considers whether lost autonomy ought to be recognised as a new form of damage in negligence and concludes that it should not. A close textual analysis of Rees and Chester is undertaken in order to determine whether a ‘lost autonomy’ analysis actually provides the best explanation of those two cases. I then look at how the concepts of autonomy and harm should be understood to determine whether, ethically speaking, to interfere with someone’s autonomy is to cause them harm. The final part of the thesis considers important doctrinal tort law considerations that have been overlooked in the medical law literature. I argue that the nature of autonomy means that it cannot coherently be considered actionable damage within the tort of negligence and that recognising a duty of care to avoid interfering with people’s autonomy would be inconsistent with the restrictive approach the courts take to recovery for psychiatric injury and economic loss. My ultimate conclusion is that the benefits of allowing such claims do not outweigh the undermining of established principles that would ensue if lost autonomy were recognised as a form of actionable damage in negligence.

    Bibliographic metadata

    Type of resource:
    Content type:
    Form of thesis:
    Type of submission:
    Degree type:
    Doctor of Philosophy
    Degree programme:
    Doctoral Programme in Bioethics/Medical Jurisprudence
    Publication date:
    Location:
    Manchester, UK
    Total pages:
    254
    Abstract:
    It has been suggested by some commentators that the ‘real’ damage (as opposed to that pleaded) in the cases of Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 and Chester v Afshar [2005] 1 AC 134 was the claimant’s lost autonomy. Arguments have consequently been put forward that lost autonomy either already is or should be recognised as a new form of actionable damage in medical negligence cases. Given the value placed on respecting patient autonomy in medical law and bioethics, it might be thought that such a development should be welcomed. But if lost autonomy is accepted as a new form of damage in negligence, it will not be confined to the two scenarios that were present in those cases and it may be inconsistent with other established negligence principles. This thesis considers whether lost autonomy ought to be recognised as a new form of damage in negligence and concludes that it should not. A close textual analysis of Rees and Chester is undertaken in order to determine whether a ‘lost autonomy’ analysis actually provides the best explanation of those two cases. I then look at how the concepts of autonomy and harm should be understood to determine whether, ethically speaking, to interfere with someone’s autonomy is to cause them harm. The final part of the thesis considers important doctrinal tort law considerations that have been overlooked in the medical law literature. I argue that the nature of autonomy means that it cannot coherently be considered actionable damage within the tort of negligence and that recognising a duty of care to avoid interfering with people’s autonomy would be inconsistent with the restrictive approach the courts take to recovery for psychiatric injury and economic loss. My ultimate conclusion is that the benefits of allowing such claims do not outweigh the undermining of established principles that would ensue if lost autonomy were recognised as a form of actionable damage in negligence.
    Layman's abstract:
    It has been suggested by some commentators that the ‘real’ damage (as opposed to that pleaded) in the cases of Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 and Chester v Afshar [2005] 1 AC 134 was the claimant’s lost autonomy. Arguments have consequently been put forward that lost autonomy either already is or should be recognised as a new form of actionable damage in medical negligence cases. Given the value placed on respecting patient autonomy in medical law and bioethics, it might be thought that such a development should be welcomed. But if lost autonomy is accepted as a new form of damage in negligence, it will not be confined to the two scenarios that were present in those cases and it may be inconsistent with other established negligence principles. This thesis considers whether lost autonomy ought to be recognised as a new form of damage in negligence and concludes that it should not. A close textual analysis of Rees and Chester is undertaken in order to determine whether a ‘lost autonomy’ analysis actually provides the best explanation of those two cases. I then look at how the concepts of autonomy and harm should be understood to determine whether, ethically speaking, to interfere with someone’s autonomy is to cause them harm. The final part of the thesis considers important doctrinal tort law considerations that have been overlooked in the medical law literature. I argue that the nature of autonomy means that it cannot coherently be considered actionable damage within the tort of negligence and that recognising a duty of care to avoid interfering with people’s autonomy would be inconsistent with the restrictive approach the courts take to recovery for psychiatric injury and economic loss. My ultimate conclusion is that the benefits of allowing such claims do not outweigh the undermining of established principles that would ensue if lost autonomy were recognised as a form of actionable damage in negligence.
    Thesis main supervisor(s):
    Thesis co-supervisor(s):
    Language:
    en

    Institutional metadata

    University researcher(s):
    Academic department(s):

    Record metadata

    Manchester eScholar ID:
    uk-ac-man-scw:296550
    Created by:
    Purshouse, Craig
    Created:
    3rd February, 2016, 12:24:34
    Last modified by:
    Purshouse, Craig
    Last modified:
    16th November, 2017, 14:24:31

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