Use this URL to cite or link to this record in EThOS: https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.748070
Title: Mental Capacity law and the justification of actions against a person's expressed wishes
Author: Skowron, Paul
ISNI:       0000 0004 7233 0746
Awarding Body: University of Manchester
Current Institution: University of Manchester
Date of Award: 2018
Availability of Full Text:
Access from EThOS:
Access from Institution:
Abstract:
When should it be permissible to act against someone's expressed wishes in their best interests? In both political philosophy and legal practice, answers to this question often appeal to the concept of autonomy. Broadly, the idea is that if a person is sufficiently self-governing, then their wishes must prevail; but if they are not, then their wishes need not be respected when promoting whatever is good for them. This thesis analyses both philosophical models of autonomy and the practice of judges in England and Wales when implementing the Mental Capacity Act 2005. With regard to the philosophical models, it finds that, despite claims to the contrary, they do not offer a plausible way of assessing whether someone else is autonomous without appealing to values that are not the person's own. With regard to legal practice, it finds that, although judges speak about 'autonomy' in contradictory ways, a coherent account of when they will find that they must respect a person's expressed wishes can be constructed. This first stage of analysis makes a gulf between 'autonomy' in philosophy and law obvious. When philosophers talk about 'autonomy', they are largely concerned with the person's relationship to themselves. When judges talk about 'autonomy', they are largely concerned with the person's relationship to the world. 'Autonomy' in the philosophical sense cannot justify current practice because it does not deal with the same subject matter. Analysis of mental capacity cases does, however, allow the development of an alternative justification for actions against a person's expressed wishes. This justification lies in an evaluation of the entire situation, not of the person. It is not reducible to any model of autonomy, not even 'relational' models. Taken seriously, this justification requires a reorientation of the ethics of mental capacity law: away from overreliance on relatively few abstract 'principles' and towards articulating the difficulty and complexity of real situations. The thesis offers two papers towards the development of this latter mode.
Supervisor: Glover-Thomas, Nicola ; Keywood, Kirsty Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID: uk.bl.ethos.748070  DOI: Not available
Keywords: best interests ; legal capacity ; UN Convention on the Rights of Persons with Disabilities ; false belief ; ethics ; law ; Court of Protection ; humility ; mental capacity ; autonomy ; Meno's Paradox
Share: