Catholic Medical Quarterly Volume 73(4) November 2023

A case of judicial paternalism

Dr Pravin Thevathasan

Dr Pravin ThevathasanIn an excellent September 5, 2023 press release entitled "Lethal paternalism-the case of ST", Professor David Jones of the Anscombe Bioethics Centre examined the ethical issues involved in the case of a nineteen year old person with a terminal illness due to a rare mitochondrial disorder. She wishes to access experimental treatment abroad that may extend her life. This was denied her at court. The judge stated that her "inability to accept the medical reality of her position likely to be the result of impairment of or disturbance in the functioning of her mind or brain." From this the judge concluded that she was incapable, as defined by the Mental Capacity Act, 2005.

Whatever the outcome of this tragic case, the decision of the judge needs to be questioned. It is a principle that a patient cannot demand that a doctor gives a specific treatment- this is a medical decision of what is appropriate. But that is completely different from saying that she does not have capacity to make the decision. The Mental Capacity Act presumes capacity: a person is deemed to have capacity unless proven otherwise. A person may even make unwise decisions. The decision to seek experimental treatment may be deemed unwise by her clinicians. But her wishes ought to have been respected.

From a medical perspective, it seems unusual to allow ventilation to be continued but not dialysis. Presumably, this is because withdrawing ventilation from a fully conscious patient against her wishes would be deemed distressing, while removing dialysis would be a longer process leading to death.

Are we moving from medical paternalism to judicial paternalism? Whatever happened to the principle of autonomy? It would appear that if you want to die, the principle of autonomy trumps every other principle. But if you want to live, the principle of paternalism trumps every other principle.