The Public-Private Distinction and Bodily Autonomy

The Public-Private Distinction and Bodily Autonomy By Prof Liz Wicks

I am giving a paper on Friday 24 October at the International Association for Philosophy of Law and Social Philosophy (IVR)’s UK Annual Conference on Public/Private: Unlocking the Boundaries of Legal Thought at Queen’s University Belfast. My paper will focus on the ‘Public-Private Distinction and Bodily Autonomy’, exploring the question of what is private in relation to the human body, and how this is determined, as well as recognising the inherent ambiguity of the public-private distinction given that the classification of a choice about the body as private may be either descriptive or normative in function.

Bodily autonomy is widely recognised as an important legal and ethical value. It is protected by Article 8 ECHR’s right to respect for private life, as well as by many substantive laws, such as the requirement of consent to medical treatment  and the criminal prohibition of non-consensual sexual activity.  However, many choices about our bodies are not completely within our autonomous control: the prohibition of assisted dying restricts the choices of how and when we may die,  while abortion remains prima facie a criminal offence, meaning that a woman’s autonomous choice to terminate her pregnancy does not suffice to justify it in the eyes of the law.  A question which is fundamental to this latter issue is whether pregnancy is a private or public matter. Despite the intuitive reaction that it is primarily private but with (perhaps) a public interest in protecting the foetus, the European Court of Human Rights has expressed its view that Article 8 ECHR ‘cannot be interpreted as meaning that pregnancy and its termination pertain uniquely to the woman’s private life’.  (A, B & C v Ireland (App. 25579/05) 16 December 2010, para 213.) In many disparate contexts, the Strasbourg Court has grown accustomed to balancing privacy against competing interests and yet in the context of pregnancy it instead expresses the concept very differently so as to emphasise that the issue is not solely private.

In my paper, I will argue that in order to determine if something is a ‘private’ choice, it is necessary to question not only the nature of the activity, but also the nature of the choice made by all parties, and the potential consequences of the conduct. If a choice about the body is correctly classified as private, the next step is to assess whether immunity from state regulation is justified. In my view, Mill’s harm principle provides the bedrock of such determinations. An exercise of bodily autonomy that is private (requiring, among other factors, that all parties to it have consented autonomously), and does not harm others, should not be subject to regulation by the state. An expanded concept of privacy in relation to the body is desirable provided that it is based upon robust interpretations of privacy, autonomy and embodiment.

Access to Medical Treatments (Innovation) Bill to Have Second Reading on Friday, 16 October

On Friday, Chris Heaton-Harris is due to introduce his Access to Medical Treatments (innovation) Bill (AMTIB) to the House of Commons. It is supposed to build on Lord Saatchi’s Medical Innovation Bill (MIB), which ran out of time during the last parliament. It is, unfortunately, impossible to support either Bill, for the reasons outlined in this blog entry.

The AMTIB does two things. First, it empowers the Secretary of State to create a register of innovative treatments (something that he does not need legislation to do). Then, it fundamentally modifies the law of negligence in order to, it is argued by its creators and supporters, remove the fear of litigation from doctors contemplating innovative treatments. This second element of the Bill is virtually directly taken from Lord Saatchi’s MIB, and has been the source of much criticism.

Indeed, the MIB was opposed by all of the major medical bodies (including the GMC, BMA and Royal Colleges), the medical protection organisations, medical research charities like Cancer Research UK and the Wellcome Trust and even patients’ groups such as AvMA and the Patients’ Association. A major problem with the MIB/AMTIB is that it replaces a court’s ability to assess the quality of a doctor’s decision-making process with a rubber stamping exercise that merely allows the court to assess whether the doctor has completed a process of consultation and contemplation.  It thus removes the courts’ power to assess the content of decisions; as it will only be able to assess the process of decision-making. This would allow maverick doctors and groups of ‘quacks’ to effectively indemnify each other. Currently, if such doctors injured patients the courts could intervene.  Under the MIB/AMTIB framework, the courts would be powerless and patients injured due to negligence would have no legal avenues for redress.

Ironically, given the title of the AMTIB, it provides no access to treatments beyond what is currently permitted, and indeed does not help patients at all. Rather, it explicitly removes the patient’s ability to sue. This is particularly unjustified since the Department of Health’s consultation regarding the MIB found no evidence that doctors are deterred from innovative practice due to a fear of litigation. This view was shared, again, by the major medical bodies, medical protection organisations, research charities and patients’ groups, as well as representatives of the legal profession.

This means that the MIB/AMTIB would remove rights from patients to solve a problem that does not exist. For this reason, the Welsh Assembly accurately called the MIB “a solution in search of a problem and not a very sound solution at that”.

For a thorough account of the failings of the MIB (and therefore the AMTIB), see J. Miola, ‘Bye Bye Bolitho? The Curious Case of the Medical Innovation Bill’ (2015) Medical Law International (available on advance access, For those without a subscription to the journal, a free version is available).

Chris Heaton-Harris’ Bill and explanatory notes are available is available.

MIB website.

Opponents of the Bill

Update: The Royal College of Paediatrics and Child Health have today confirmed that they remain strongly against the MIB/AMTIB.

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