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Abstract

This paper seeks to explore the legal structure of consent and its particular application to the health care context. The emphasis upon the ethical principles of respect for autonomy and self‐determination in this context raises the question of the extent to which current legal norms accommodate the spiritual diversity within the patient population. Whilst the liberal theories upon which the structure of consent have been built suggest that such diversity, as well as more generally multiculturalism, are not only respected but encouraged, it is questionable whether this has occurred in a context which concerns the beginning and ending of life as well as decisions about quality of life. The diversity within the patient population raises the issue of how amenable healthcare law, structured as it is around the ethics and beliefs of a ʺdominantʺ white, middle‐class culture, is to the challenges presented by ʺminorʺ religious and spiritual beliefs. These challenges are most commonly a result of fundamental differences as to the meaning of life and death and what constitutes a “worthwhile” life. It is concluded that the law of consent is dominated by values which do not accord any preference to any faith held by the patient decision‐maker. It is contended that this may not be the case in those jurisdictions which have constitutionally entrenched human rights guarantees, but an analysis of the case law in those countries suggests otherwise. It is concluded that the appropriate prescriptive model is one which accords priority to the protection of bodily integrity given the continuing need to resist paternalistic approaches in this context. However it also suggests that an approach to decision making which is more conciliatory is necessary in such a context where the law is often too blunt in its attempts to resolve difficult questions about the ending and quality of life.

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