1. See, for example, Stone, Alan A., “The Right to Refuse Treatment,” Archives of General Psychiatry 38 (1981), 358–362CrossRefGoogle ScholarPubMed; “Competence and the Right to Refuse Treatment,” in Basson, Marc, Lipson, Rachel and Ganos, Doreen (eds.), Troubling Problems in Medical Ethics: The Third Volume in a Series on Ethics, Humanism and Medicine (New York: Alan R. Liss Inc., 1981), 151–178Google Scholar; Siegler, Mark and Goldblatt, Ann Dudley, “Clinical Intuition: A Procedure for Balancing the Rights of Patients and the Responsibilities of Physicians,” in Spicker, S.F., Healey, J.M. and Englehardt, H.T. (eds.), The Law-Medicine Relation: A Philosophical Exploration (Boston: D. Reidel Publishing Co., 1981), 5–31CrossRefGoogle Scholar; Dworkin, G., “Paternalism,” The Monist 56 (1972), 64–84CrossRefGoogle Scholar; Gillon, Raanan, “Autonomy and Consent,” in Lockwood, Michael (ed.), Moral Dilemmas in Modern Medicine (New York: Oxford University Press, 1985), 111–125Google Scholar; Fader, Ruth R. and Beauchamp, Tom L., A History and Theory of Informed Consent (New York: Oxford University Press, 1986)Google Scholar.

2. A person who normally acts in this self-ruled fashion, determining her actions according to her own rules or judgments, also is said to be autonomous.

3. Faden, and Beauchamp, , A History and Theory of Informed Consent, 262–266Google Scholar.

4. Ibid.

5. Kant, of course, believed that substantial moral judgments could be derived from little more than this framework.

6. Faden, and Beauchamp, , A History and Theory of Informed Consent, 235–273Google Scholar.

7. ,Ibid., 339-340.

8. Ibid., 261-262, 346-354.

9. Ibid., 261, 354-368.

10. See Final Report of the Tuskegee Syphilis Study Ad Hoc Panel, Public Health Service, April 1973. The case is also discussed in Faden, and Beauchamp, , A History and Theory of Informed Consent, 165–167, 356Google Scholar. The non-control subjects, who were suffering from syphilis, were induced to participate in the study for many years by offers of free food, medicine, burial assistance, transportation to and from the medical examinations and stops in town on the way home. During this time the subjects received no treatment, or demonstrably inadequate treatment, for their syphilis.

11. This does not imply that a patient must make heroic efforts to attain knowledge in all cases. It is, after all, a reasonable choice that is being sought, and sometimes the reasonable choice involves taking a degree of risk which could be eliminated with further effort.

12. Whether a physician should take it upon herself alone to decide this is a completely different issue.

13. Marshall v. Curry [1933] 3 D.L.R. 260 (N.S.C.A.); Mulloy v. Hop Sang [1935] 1 W.W.R. 714 (Alta. C.A.); Schloendorff v. Society of New York Hospital (1914) 211 N.Y. 125; See also Brant, Jonathan, “Last Rights: An Analysis of Refusal and With-holding of Treatment Cases,” Missouri Law Review 46 (1981), 337, 340–347Google Scholar.

14. Marshall v. Curry and Mulloy v. Hop Sang.

15. For an excellent discussion of the nature of understanding in this context, see Faden, and Beauchamp, , A History and Theory of Informed Consent, 248-255, 289–336Google Scholar.

16. See, for example Reibl v. Hughes (1980) 14 C.C.L.T. 1 (S.C.C.). This position is suspect. In a general way, the magnitude of risk is part of the very nature of the procedure. Someone who did not understand that open-heart surgery was “major” or that removal of a wart was “minor” could not be said to understand the nature of those procedures.

17. She may, of course, autonomously choose in these circumstances to let a physician or other expert choose on her behalf; i.e., the only possible autonomous choice may be to give up the right to choose.

18. Zembaty, Jane S., “A Limited Defence of Paternalism in Medicine,” in Mappes, Thomas A. and Zembaty, Jane S., Biomedical Ethics (New York: McGraw-Hill, 1981), 55–61Google Scholar. In the 1986 edition the page reference is 60-66.

19. Reasonableness is assessed from the point of view of the actor, since autonomy depends on the actor's use of reason, not absolute or social standards.

20. See the discussion of manipulation of information (deception) in the section on Respect for the Person.

21. She may be capable of reasonably choosing to defer to an expert's informed judgment. This capacity, however, is not a capacity to choose treatment.

22. Care must be taken, too, that the patient is not prevented from making other autonomous choices of which she is capable. She would be shown disrespect if she were not allowed to get a second opinion, choose her own physician, and so on, to the extent of her capabilities.

23. I am using “appreciate” in the non-technical sense of “understand,” “recognize” or “realize.”

24. These “important matters” include events, actions and states which the person believes affect things she values or will value. When the exact values, priorities and preferences which make reasoned action regarding these things possible are uncertain, obscure or inchoate, there is a clear sense in which the person's value system is inadequate (relative to those matters).

25. Some inconsistencies are only apparent, since the person accepts higher-order values or ranking principles which resolve the repugnance.

26. If a soldier faces battle with an unresolved conflict between the demands of honor and personal welfare, whatever she does will misrepresent her moral character. Consider, on the one hand, the lengths to which “Lord Jim” went in Joseph Conrad's novel in order to overcome the implications of his having abandoned ship, and on the other hand, the problems caused by the implications of being wounded in Crane's, StephenThe Red Badge of Courage (Delmar, N.Y.: Scholars' Facsimiles & Reprints, 1967, reprint of 1894 edition)Google Scholar.

27. I am using “moral growth” in a very broad sense that includes accepting new values or discarding old ones, clarifying, refining, establishing priorities, coming to a new understanding and all similar changes in a person's values.

28. The common law was not the first system of law to make or use this development. Both late Roman law and Canon law appear to have well developed, abstract conceptions of the person. The common law was the beneficiary, either directly or indirectly, of these developments, although there is considerable dispute as to how direct the impact was.

29. This same individual is the citizen of much democratic political theory.

30. The masculine pronouns are used deliberately. Through most of the history of the modern concept of the legal person, application to women has been severely limited. This was often rationalized by denying that women had the necessary mental capacities to be considered rational, autonomous agents. At various times the same argument has been, and is, applied to non-Caucasians and children to deny them legal and/or political status.

31. The M'Naghten test of criminal insanity covers both normal cognitive incapacity and the inability to know that the act was wrong. The latter inability is functionally equivalent to placing no value on the law and conformity to law.

32. Rationality is played out in counterpoint to the individualized justice of the Biblical prophets. See Smith, J.C. and Weisstub, David, The Western Idea of Law (Toronto: Butterworths, 1983)Google Scholar.