Decisions about Medical Treatment and Care, the Legality Assumptions and Sovereign Power - Empowering Patients Out of the State of Bare Life?

Abstract

The framing of patients making decisions about their medical treatment and care as traditional legal decisions, thresholds and formalities is a means to avoid legal liabilities through a rationalisation of decision-making, autonomy and choice. A credible account for the actual place of patients posits the sovereign power (founded in the works of Carl Schmitt and Giorgio Agamben) of the health care professional deciding the state of exception - a discrete legal space where the authority of health care professionals is both lawful and beyond the law. This reveals that dealing with broadly conceived consent issues with more law, more process and procedure but without addressing the inherent legality assumptions that empower health care professionals will always be flawed. This section piece concludes that the resolution of consent issues is about a culture of consent rather than a frame of legal process and limiting legal liability.