O'Shea, Tom A Civic Republican Analysis of Mental Capacity Law. Legal Studies. ISSN 1748-121X (In Press)
Abstract
This article draws upon the civic republican tradition to offer new conceptual resources for the normative assessment of mental capacity law. The republican conception of liberty as non-domination is used to identify ways in which such laws generate arbitrary power that can underpin relationships of servility and insecurity. It also shows how non-domination provides a basis for critiquing legal tests of decision-making that rely upon ‘diagnostic’ rather than ‘functional’ criteria. In response, two main civic republican strategies are recommended for securing freedom in the context of the legal regulation of psychological disability: self-authorisation techniques and participatory shaping of power. The result is a series of proposals for the reform of decisional capacity law, including a transition towards purely functional assessment of decisional capacity, surer legal footing for advanced care planning, and greater control over the design and administration of decision-making capacity laws by those with psychological disabilities.
Metadata
Item Type: | Article |
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Authors/Creators: |
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Copyright, Publisher and Additional Information: | This is an author-produced version of the published paper. Uploaded in accordance with the publisher’s self-archiving policy. Further copying may not be permitted; contact the publisher for details |
Keywords: | mental capacity, legal capacity, civic republicanism, non-domination |
Institution: | The University of York |
Academic Units: | The University of York > Faculty of Social Sciences (York) > Politics (York) |
Depositing User: | Dr Tom O'Shea |
Date Deposited: | 17 May 2017 08:21 |
Last Modified: | 31 Mar 2018 07:00 |
Status: | In Press |
Publisher: | Wiley |
Open Archives Initiative ID (OAI ID): | oai:eprints.whiterose.ac.uk:116359 |