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Autonomy, vulnerability and capacity: a philosophical appraisal of the Mental Capacity Act

Published online by Cambridge University Press:  19 February 2013

Catriona Mackenzie*
Affiliation:
Department of Philosophy, Macquarie University, Sydney, NSW,Australia
Wendy Rogers
Affiliation:
Department of Philosophy and Australian School of Advanced Medicine, Macquarie University, Sydney, NSW, Australia

Abstract

The UK Mental Capacity Act provides an important legislative framework for protecting persons who are vulnerable, by virtue of partial or total lack of capacity, from abuse, coercion, exploitation, disrespect or unwarranted intrusions on their privacy and liberty. In this article we argue, however, that in order to effectively implement the Act's governing principles and promote the autonomy of persons whose capacities are impaired, health and social welfare professionals must go beyond a primarily cognitive approach to capacity assessment and refer to a range of more demanding autonomy conditions relating to authenticity, diachronic coherence and consistency, accountability to others, and affective attitudes towards oneself. We suggest that these conditions are in fact implicit in the guidelines, scenarios and practical advice contained in the Act's accompanying Code of Practice. To ground our analysis, we discuss two cases of end-of-life decision-making, and consider how these cases might have been assessed had the Mental Capacity Act been applied. We also address the question of whether the conditions for autonomy we identify raise the bar too high to be met by persons who are vulnerable because their capacity is partially compromised.

Type
Articles
Copyright
Copyright © Cambridge University Press 2013

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References

Anderson, Joel and Honneth, Axel (2005) ‘Autonomy, Vulnerability, Recognition, and Justice’, in Christman, John and Anderson, Joel (eds), Autonomy and the Challenges to Liberalism. Cambridge: Cambridge University Press, 127–49.Google Scholar
Beauchamp, Tom and Childress, James F. (2008) Principles of Biomedical Ethics, 6th edn.New York: Oxford University Press.Google Scholar
Benson, Paul (1994) ‘Free Agency and Self-Worth’, Journal of Philosophy 91: 650–68.CrossRefGoogle Scholar
Benson, Paul (2005a) ‘Taking Ownership: Authority and Voice in Autonomous Agency’, in Christman, John and Anderson, Joel (eds), Autonomy and the Challenges to Liberalism. Cambridge: Cambridge University Press, 101126.Google Scholar
Benson, Paul (2005b) ‘Feminist Intuitions and the Normative Substance of Autonomy’, in Taylor, James Stacey (ed.), Personal Autonomy: New Essays on Personal Autonomy and its Role in Contemporary Moral Philosophy. Cambridge: Cambridge University Press, 124–42.Google Scholar
Bratman, Michael (2007) Structures of Agency. Oxford: Oxford University Press.CrossRefGoogle Scholar
Christman, John (2005) ‘Autonomy, Self-knowledge and Liberal Legitimacy’, in Christman, John and Anderson, Joel (eds), Autonomy and the Challenges to Liberalism. Cambridge: Cambridge University Press, 330–57.CrossRefGoogle Scholar
Christman, John (2009) The Politics of Persons. Cambridge: Cambridge University Press.Google Scholar
Department for Constitutional Affairs (2007) Mental Capacity Act 2005 Code of Practice. Norwich: Stationery Office.Google Scholar
Department of Health (2000) No Secrets: Guidance on Developing and Implementing Multi-agency Policies and Procedures to Protect Vulnerable Adults from Abuse. London: Home Office.Google Scholar
Dunn, Michael C., Clare, Isabel C. H. and Holland, Anthony J. (2008) ‘To Empower or to Protect? Constructing the ‘Vulnerable Adult’ in English Law and Public Policy’, Legal Studies 28(2): 234–53.Google Scholar
Dworkin, Gerald (1988) The Theory and Practice of Autonomy. Cambridge: Cambridge University Press.Google Scholar
Goodin, Robert (1985) Protecting the Vulnerable. Chicago: University of Chicago Press.Google Scholar
Govier, Trudy (1993) ‘Self-Trust, Autonomy and Self-Esteem’, Hypatia 8: 99120.Google Scholar
Korsgaard, Christine (1996) The Sources of Normativity. Cambridge: Cambridge University Press.Google Scholar
Mackenzie, Catriona (2008) ‘Relational Autonomy, Normative Authority and Perfectionism’, Journal of Social Philosophy 39(4): 512–33.Google Scholar
Mackenzie, Catriona and Stoljar, Natalie (2000a) Relational Autonomy: Feminist Perspectives on Autonomy, Agency and the Social Self. New York: Oxford University Press.CrossRefGoogle Scholar
Mackenzie, Catriona and Stoljar, Natalie (2000b) ‘Introduction: Autonomy Refigured’, In Mackenzie, Catriona and Stoljar, Natalie (eds), Relational Autonomy: Feminist Perspectives on Autonomy, Agency and the Social Self. New York: Oxford University Press, 331.Google Scholar
McLeod, Carolyn (2002) Self-trust and Reproductive Autonomy. Cambridge, MA: MIT Press.Google Scholar
National Assembly for Wales (2000) In Safe Hands: Implementing Adult Protection Procedures in Wales. Guidance Issued by the National Assembly for Wales under s 7 of the Local Authority Social Services Act 1970. Cardiff: National Assembly for Wales.Google Scholar
O'Neill, Onora (2002) Autonomy and Trust in Bioethics. Cambridge: Cambridge University Press.Google Scholar
Rogers, Wendy, Mackenzie, Catriona and Dodds, Susan (2012) ‘Why Bioethics Needs a Concept of Vulnerability’, International Journal of Feminist Approaches to Bioethics 5(2): 1138.CrossRefGoogle Scholar
Taylor, Charles (1989) Sources of the Self. The Making of Modern Identity. Cambridge: Cambridge University Press.Google Scholar
Taylor, Charles (1991) ‘The Dialogical Self’, in Hiley, David R., Bohman, James and Shusterman, Richard (eds), The Interpretive Turn: Philosophy, Science, Culture. Ithaca, NY: Cornell University Press, 304314.Google Scholar
Westlund, Andrea (2009) ‘Rethinking Relational Autonomy’, Hypatia 24(4): 2649.CrossRefGoogle Scholar