Year: 1992
Type: article
Abstract: AUTONOMY is one of the central values that shapes law gen- erally and mental health law in particular.'Many legal rules in the mental health area reflect a careful balancing of autonomy values against the state's interests in paternalism and in the protection of community safety. 2 However, the justifications for valuing autonomy have been insufficiently examined.Indeed, autonomy has its critics.3 This Article examines justifications for our preference for individual autonomy from a number of perspectives.Section II of the Article analyzes the treatment of autonomy values in constitutional and legal doctrine, as well as in philosophical and political theory.This section traces the autonomy principle to the political thought that led to the American Revolution, the Constitution, and the Bill of Rights.Further, this section analyzes in detail how several areas of constitutional doctrine reflect autonomy values.These areas of constitutional doctrine include the substantive due process right of privacy/autonomy; the First Amendment rights 1. See Bruce J. Winick, Competency to Consent to Treatment: The Distinction Between Assent and Objection, 28 Hous.L. REV. 15 (1991) [hereinafter Competency to Consent to Treatment] (discussing autonomy in context of informed consent doctrine); Bruce J. Winick, Competency to Consent to Voluntary Hospitalization: A Therapeutic Jurisprudence Analysis of Zinermon v. Burch, 14 INT'LJ.L. & PSYCHIATRY 169 (1991) [hereinafter Competency to Consent to Voluntary Hospitalization] (discussing autonomy as it relates to voluntary hospitalization); BruceJ.Winick, The Right to Refuse Mental Health Treatment: A First Amendment Perspective, 44 U. MIAMI L. REV. 1 (1989) [hereinafter Right to Refuse] (discussing autonomy in context of individuals' right to refuse treatment).2. See Winick, Right to Refuse, supra note 1, at 90-101 (examining balancing of interests that occurs in adjudicating patients' rights to refuse treatment); BruceJ.Winick, Restructuring Competency to Stand Trial, 32 UCLA L. REv.921, 985 (1985) (analyzing balancing of interests underlying competency to stand trial doctrine); Note, Developments in the Law-Civil Commitment of the Mentally Ill, 87 HARV.L. REV.1190, 1201-02 (1974) (analyzing balancing of interests underlying civil commitment doctrine).3. See, e.g., Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, With Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MD.L. REV.563, 624-49 (1982) (defending ad hoc paternalistic interventions in cases in which intersubjectivity produces in actor a strong intuition that beneficiary's choices are based on some form of false consciousness and are in fact harmful, and also justifying instances of paternalism in contract and tort law); Martha Minow, Feminist Reason: Getting It and Losing It, in FEMINIST LEGAL THE- ORY: READINGS IN LAW AND GENDER 357, 358 (Katharine T. Bartlett & Rosanne Kennedy eds., 1991) ("[T]he assumptions of autonomous individualism behind American law, economic and political theory, and bureaucratic practices rests on a picture of public and independent man rather than private-and often dependent, or interconnected-woman."); Robin West, Jurisprudence and Gender, in FEMINIST LEGAL THEORY: READINGS IN LAW AND GENDER, supra, at 210-34 (criticizing autonomy as male-oriented and inconsistent with women's essential communitarian nature).
Source: PubMed
Author: Bruce J Winick
Language: English
Subfield: Clinical Psychology
Field: Psychology
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W2143981908