By Luis Manuel Sánchez
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Extra resources for Despues del positivismo. Re-sustantivando el derecho
He said that Munby’s suggestion (that it is the duty of the doctor to provide treatment which complies with the wishes of the patient) did not mean that a doctor was obliged to provide treatment to a patient: Munby J was not . . concerned with the extent to which, in general, a patient has a right to insist on particular treatment. He was concerned with the choice of whether or not to receive life-prolonging treatment . . (Burke (2) at para 50)56 He went on to say that just because a patient has the autonomy to refuse treatment does not mean he has the corollary right to demand treatment.
Sole reliance on and manipulation of intention in order to reach a ‘correct’ decision, together with the problems listed above, simply provide more evidence of the inappropriateness of applying criminal law concepts to medical decision-making. Moreover, the numerous factors a doctor has to consider when treating his patients, some of which will be brieﬂy mentioned below, certainly have nothing to do with the ‘criminal’ intention discussed earlier in this chapter. Indeed, none of the considerations discussed are per se based upon the mental element of intention at all, but they do nonetheless form a central part of the way in which a doctor treats his patients and performs his role.
Constructibility’ and ‘directing the intention’ Griﬃths has devised the notion of ‘constructibility’ (Griﬃths 1994: 147),36 in order to explain that doctors may ‘construct’ what is really a case of euthanasia into something entirely diﬀerent according to what is allowed. This idea has been alternatively explained by Ann Davies thus: When we are in circumstances in which . . there is no possibility of independent veriﬁcation of what our intentions were, and we want very much (not) to do a particular thing .