Skowron, Paul (2018) The Relationship between Autonomy and Adult Mental Capacity in the Law of England and Wales. Medical Law Review. ISSN 1464-3790
Abstract
Judges in England and Wales tell three apparently contradictory stories about the relationship between autonomy and mental capacity. Sometimes, capacity is autonomy’s gatekeeper: those with capacity are autonomous, but those without capacity are not. Sometimes, capacity is necessary for autonomy but insufficient; for voluntariness, freedom from undue external influences is also required. Finally, sometimes autonomy survives incapacity, and a person without capacity is nevertheless treated as autonomous. These three accounts coexist, so no story of evolution, in which one account comes to replace another, can be told. Similarly, no story of judicial factions is plausible, for judges switch account to suit the facts of a particular case. This article gives examples of all three accounts, traces their recent history, and shows how each serves one or two characteristic purposes. It then shows how they can be combined into a coherent descriptive account of the relationship between autonomy and mental capacity in domestic law.
Metadata
Item Type: | Article |
---|---|
Authors/Creators: |
|
Copyright, Publisher and Additional Information: | © The Author(s) 2018. 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 |
Dates: |
|
Institution: | The University of York |
Academic Units: | The University of York > Faculty of Social Sciences (York) > The York Law School |
Depositing User: | Pure (York) |
Date Deposited: | 25 Apr 2018 08:50 |
Last Modified: | 20 Dec 2024 00:14 |
Published Version: | https://doi.org/10.1093/medlaw/fwy016 |
Status: | Published |
Refereed: | Yes |
Identification Number: | 10.1093/medlaw/fwy016 |
Open Archives Initiative ID (OAI ID): | oai:eprints.whiterose.ac.uk:129997 |
Downloads
Filename: PS_Autonomy_and_Capacity_v13_edu_vers.docx
Description: PS - Autonomy and Capacity v13 edu vers
Filename: PS_Autonomy_and_Capacity_v16_pure_version.docx
Description: PS - Autonomy and Capacity v16 - pure version