Rights, Truth and Consent ~ Patient Autonomy & Paternalism

The following definitions and other information about autonomy comes from a course for undergraduate students in nursing, mfry and medicine at CUNY.edu. It is more directly relevant to the rights of women as maternity care patients, than to our professional rights as midwives.

However, the information is still very enlightening and helpful in understanding our own and our family’s right to make health and maternity care decisions for ourselves and our minor children. Also there is a lot of cross-over into midwifery when you realize how frequently the abridgment of such rights is instigated by medical providers who:

(a) believe without any actual proof that they know better what is good for YOU, than you, the individual, does

(b) is based on out-dated or inappropriate  medical treatments or protocols (e.g. bed-rest), and/or does not take into consideration the very real possibility of iatrogenic or nosocomial complications.

I’ve described this in other places as the idea that it is somehow “better” to suffer or die from OVER treatment than from UNDER treatment.  While a healthcare provider may (a big “if”) be less likely to get criticized or sued for over-treating a patient, it’s no less tragic to the patient to have suffered side-effects and complications from aggressive treatments or invasive procedures. Actually for many, it is even worse.

As for our situation as ‘liberated’ midwives — autonomous professionals — we can see that the fingerprints of ‘paternalism’ in limitation imposed by AB 1308 on our scope of practice that is actually a ‘once removed’ form of paternalism directed at childbearing women.

I’m not professionally harmed by not providing OOH care to a woman with a post-mature pregnancy, but then its not me, or my daughter or daughter-in-law whose being told that she must be induced, even thought she has very long cycles or other good evidence that her pregnancy is mis-dated, or possibly post-dates but not post-mature, and her baby is fine according to all the indicators of fetal well-being.


Chapter 6 ~ Section 3 The Issue of AUTONOMY

Autonomy is to be recognized as a right for the self determined, rational agents who are independent and are capable of both a.) rational and b.) unconstrained decision making and acting accordingly.

a.) Rational if the agent can:

  1. select the best means to a chosen end, i.e. to reason well and
  2. to choose the appropriate ends.

Factors operating against rationality: emotions, laziness, pain, drugs, lack of intelligence (temporary or permanent) and training.

b.) Unconstrained – without constraints if both conditions are satisfied:

  1. there is no lack of necessary element
  2. there is no coercive force or use of threat

The Right of Self-Determination or Autonomy would include the right to refuse treatment, the right to participate in research or refuse it.  To exercise this right would require Informed Consent.

What of those who are not capable of both rational and unconstrained decision making and acting accordingly?     These would include:

  • Comatose
  • Brain Damaged
  • Psychotic
  • Mentally Impaired
  • Drug Induced State

Then there would need to be someone to make decisions on behalf of those who are incapable.  These decision makers would become the proxy for persons who are, for whatever reason, incapable of doing so for themselves. They would exercise a proxy consent.  More of this in a subsequent section of this chapter.

Restrictions on Autonomy:

Some believe that there can be justifications for violations of the principle of autonomy.

There are four principles cited to justify restrictions on Autonomy:

  1.  Harm Principle- stop an individual from causing harm to others
  2.  Paternalism Principle-
    • Weak -to stop a person from self harm
    • Strong -to benefit a person
  3.  Legal Moralism Principle- legislated morality to prevent harm or improve situations
  4.  Welfare (Social Benefit) Principle- for the benefit of many others or for all

Examples of each principle:

  • Harm- if a person has a highly contagious and life threatening disease that person could be confined against that person’s will
  • Paternalism-weak- a person attempting suicide by ingesting poison could have the stomach cleared of the poison in the ER even though refusing treatment
  • Paternalism-strong- a 22 year old person could have a gangrenous leg amputated even against a refusal of treatment
  • Legal Moralism – children can be inoculated against disease despite their refusal and that of their parents
  • Welfare- a person with a rare anti-body to a deadly incurable disease threatening the general population could be made to give a specimen of their blood or bone marrow or other tissue for the sake of the benefit of the entire society, e.g., seat belts, helmets, inoculation, organ donation

Paternalism :

Of all the threats to Autonomy, paternalism is the most prevalent within health care.  It exists as a tradition in some settings and with some providers of health care.  It has its defenders.

Paternalism is characterized by action taken by someone:

  • to act to advance or protect the interests of a person
  • to act as one thinks best for others regardless of their expressed wishes

“Paternalism is an especially touchy topic in the context of medicine because there are so many factors contributing to the paternalistic attitudes so often adopted by health care professionals:

  • Patients are usually lay-persons with respect to medical care.

  • Health care professionals have limited time to explain complicated physiological or psychological concepts to their patients.

  • It is not clear that, even given the time, health care professionals generally would be able to provide adequate explanations, since such professionals are not usually teachers.

  • Not every lay-person is capable of completely understanding all the issues involved in making a medical decision.

  • Even if all the issues involved in making a medical decision can be adequately explained, health care professionals dislike being put in the position of having to defend their decisions from skeptical patients.

  • Often, medical professionals must make decisions about what to disclose to others about a particular patient on the basis of what is best for the patient or in order to prevent harm to others.”

Outline by  Don Berkich,  University of Texas, Corpus Christi (by permission)

The conflicting moral dilemma in health care is between the autonomous wishes of the recipient of care and the paternalistic demands of the doctors. When should the demands of the recipient of care be granted, even if the decision would result in the certain death of the recipient of care ?

Paternalism is the interference with the liberty or autonomy of another person, with the intent of promoting good or preventing harm to that person. Examples of paternalism in everyday life are laws which require seat belts, wearing helmets while riding a motorcycle, and banning certain drugs. An action is paternalistic if its intent is to promote good or prevent harm to a person, the action is contrary to the current preferences of that person, and the action is a limitation of that persons autonomy.

Soft paternalism justifies actions contrary to the autonomy or liberty of a person when that person’s choices are non-voluntary or they need more time to reflect. Examples of this are when people suffer from mental incapacities and the parental disciplining a child (against their will). Hard paternalism justifies actions in cases even when the person is acting voluntarily (seat belts and helmet laws).

Forms of Paternalism:

    • A. State Paternalism: laws and regulations:
      • Medical Practice Restrictions
      • Licensing
      • Drugs
      • Research Restrictions


  • B. Personal Paternalism: individual acts

In the relationship of the health care provider to the recipient of care, the recipient of care surrenders some autonomy to the provider.  The questions are: How far does this surrender extend? How much decision making authority can be or should be surrendered, if any at all?

Paternalism usually involves:

  1. Coercion more than the denial of freedom
  2. Control of behavior
  3. Interference with liberty,  e.g., lying to a dying mother

One essential feature of Paternalism in the sense that it is being discussed here is a violation of moral rules (rights).

Acts of paternalism would violate rules against:

  • deception
  • deprivation of freedom
  • disabling or harming or killing
  • causing pain
  • manipulating consent

A Limited Defense of Paternalism Based Upon Utility

Someone acts paternalistically in order to protect autonomy where it might be destroyed if that person acts in a non-paternalistic manner. This is based upon a consideration of the consequences.

In all cases of attempting to justify paternalism there are two principles;

1. Burden of proof for going forward, or persuasion is with the authorities to demonstrate the consequences and potential harm or benefit to be achieved and the probabilities of each result.

2. Selection of the least restrictive alternative after all other alternatives (considering costs, inconveniences and time) are tried first.

For the utilitarians, one reason to violate a person’s liberty is for self protection and another reason would be to prevent harm to others. There would be no utilitarian justification to interfere with a person’s liberty for that person’s own good. This would not be sufficient reason or warrant to exercise compulsion by an individual or by society. It should be noted that acting to prevent harm is not Paternalism.

Acting against a person’s wishes in order to prevent harm is paternalism.  Acting to promote the good, even against the person’s wishes, is paternalism. Paternalism is the use of coercion to achieve a good for a person who does not recognize the good.  Question: Is the individual the best judge of that individual’s best interests? Who is the judge of one’s own welfare?   Paternalism would only be justified , according to John Stuart Mill, to preserve wider freedom. e.g., there are laws prohibiting slavery and contracts for indentured servitude.

READ: Claire Andre and Manuel Velasquez For Your Own Good in Issues in Ethics, Vol. 4, No. 2   Fall 1991 at   http://www.scu.edu/Ethics/publications/iie/v4n2/owngood.html

To choose is a GOOD that is separate from the good that is chosen.

READ: On Paternalism: by Peter Suber in Christopher B. Gray (ed.), Philosophy of Law:  An Encyclopedia, Garland Pub. Co, 1999, II.632-635.  http://www.earlham.edu/~peters/writing/paternal.htm

A Defense of Paternalism

Gerald Dworkin, PaternalismThe Monist, La Salle, IL., Vol. 56, No. 1.

READ: Dworkin’s Argument summarized by from Don Berkich of University of Massachusetts

at: http://www-unix.oit.umass.edu/~phil100/units/unit-07/lecture-01/dworkins_argument.html

Dworkin does not draw a sharp distinction between weak and strong paternalism – and perhaps there is no sharp distinction to be drawn – he does argue that Mill was mistaken to reject paternalism. According to Dworkin, the wager view by which Mill justifies paternalism with respect to children can be extended to adults.

The Wager View: It is morally permissible to restrict the autonomy of children for their benefit since they are not fully rational and we bet (wager) that if they were, they would concur with our decisions.

But extending the wager view to adults requires that we assume that, if the adult were fully rational, the adult would concur with our restrictions on his or her autonomy. What this implies is that

  1. Those who would restrict an individual’s autonomy bear the burden of proof-i.e., they must demonstrate that paternalism is justified. It is not required that the individual justify that paternalism is wrong, since paternalism is presumptively wrong.

  2. In cases were paternalism can be adequately justified, the alternative which least restricts autonomy should be adopted over any other alternative.

Given these restrictions on paternalism, it is astonishing to realize the extent of unjustified paternalism on the part of the Federal and State Governments. For example, the so-called ‘War on Drugs’ and the prohibition of drugs for recreational use is morally illicit, since the government has clearly failed to adopt the alternatives which least restrict autonomy, even assuming it borne the burden of proof to justify the prohibition, which, to be sure, it has not.”

 – – Don Berkich of University of Massachusetts


Against Paternalism

Mill was opposed to Strong Paternalism:

Cardinal Error of Paternalism: http://hem.passagen.se/nicb/pater.htm

The Kantian Categorical Imperative would NOT justify Paternalism. For Kant you can not treat a person as a means to an end even to their own ends. No one knows what the future consequences will be.  Informed Consent is not to be violated.

Could a person consent to have others force him to do something? e.g., Odysseus when he knew he would be tempted and overcome by sirens he had his crew tie him up and ignore his protestations until they were clear of the danger.  Could an ill person consent to have their decision making authority given over to someone else for decisions that they might then protest against?  Under what conditions and for what period of time?  What principles would make this morally justifiable?

© Copyright Philip A. Pecorino 2002. All Rights reserved.Web Surfer’s Caveat: These are class notes, intended to comment on readings and amplify class discussion. They should be read as such. They are not intended for publication or general distribution.
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