Supported Decision-making 2A: Human Rights 2B: Legal Principles 2C: Ethics, Autonomy and the Law 2D: The Cultural Dimension 2E: SDM in practice & case law Recommendations for supported decision-making

2C: ETHICS, AUTONOMY AND THE LAW

Autonomy and capacity

  1. The law’s approach to capacity is consistent with a traditional liberal account of autonomy based on individual rights and non-interference. The liberal account still places limits on autonomy to avoid harm. In John Stuart Mill’s words:288
    The only purpose for which power can be rightfully exercised over any member of a civilised community against his will, is to prevent harm to others...Over himself, over his own body and mind, the individual is sovereign.
  2. There are occasions when the State, through the law, might legitimately override the autonomy of individuals for their own good; for example, the mandatory use of bike helmets for road safety, or mental health laws that override an individual’s autonomy to protect the individual from doing harm to self or others.

  3. Although autonomy is not without limits, once the right to autonomy does arise, it is accorded primary status in a hierarchy of values.289 If there is a conflict between autonomy and other values, respect for autonomy dictates that decision-making power must be fully situated in the individual regardless of consequences for the person’s welfare and even for their life.290

  4. Capacity is said to be the gatekeeper for autonomy,291 as embodied in the legal principles of the presumption of competence and that a person is entitled to make imprudent decisions (in English law, “unwise decisions”) so long as they are considered to have the capacity to do so.292 This “brightline” division between capacity and incapacity, however, avoids broader questions of decision-making agency (and to be recognised as “an actor in law”), preferring instead to shoehorn questions of agency into the test of capacity.293 The problem with this brightline approach is the failure to recognise the extent to which people with impaired capacity can truly exercise their autonomy. As Donnelly explains,294 A person with dementia forced to choose between continuing to live at home with an abusive child or life in a nursing home, can hardly be described as an autonomous agent, notwithstanding whether or not he or she meets a legal standard for capacity.

  5. In setting boundaries of mental capacity, if the person’s decision fits with societal norms, there is a tendency to regard the decision as demonstrating the person’s capacity. If however, the decision differs from societal norms, it is more likely that the person’s capacity is questioned.295 Intervention on the basis of incapacity is an important component of the law’s approach to healthcare decision-making, where there is a need to balance the values of autonomy (self-determination) and beneficence (well-being).296
288 JS Mill On Liberty (John Parker & Son, London, 1859). JS Mill is often cited by Judges in refusal of treatment cases. For example, Nottinghamshire Healthcare NHS Trust v RC, above n 191, at [1.105].

289 One of the most influential texts in medical ethics where the principle of autonomy has been accorded status above other principles such as beneficence is TL Beauchamp and JF Childress, Principles of Biomedical Ethics (7th ed, Oxford University Press, New York, 2013).

290 Donnelly, above n 254 at 21.

291 Donnelly, above n 254 at Chapter 3.

292 Protection of Personal and Property Rights Act 1988, s 6(3).

293 Donnelly, above n 254 at 59 - 65.

294 Donnelly, above n 24 at 278. This example is in reference to the development of the vulnerability-based inherent jurisdiction in England.

295 M Brazier and E Cave Medicine, Patients and the Law (5th ed Penguin Books, London, 2011) at 65.

296 Buchanan and Brock, above n 35.
Autonomy and the importance of relationships
  1. There is a substantial body of literature in bioethics that is critical of the liberal notion of autonomy because it is viewed as too individualistic and inconsistent with other important values, such as dignity297 or trust.298 There has been increased recognition of autonomy as a relational concept. In essence, relational autonomy treats a person’s agency as shaped or even constituted by their environment and supporting relationships with others,299 even though relationships can also be oppressive and a threat to a person’s autonomy. Beyond agreement that autonomy is valuable and cannot be separated from relational and social conditions, there are diverse approaches to relational autonomy. 300

  2. While respect for autonomy is central to the human rights framework, other values, including respect for dignity are also important.301 The CRPD’s approach to legal capacity has largely drawn on the notion of relational autonomy.302 A relational approach to capacity assessments for example, requires a shift in focus away from testing the internal workings of the individual’s mind and instead requires that account be taken of the wider context, both structural and personal, which influences the person’s capacity. As Donnelly says: 303
    The capacity assessor may no longer be viewed as an objective outsider who tests the patient and decides whether she is capable or not but as an essential part of the process of developing her capacity

  3. Whether the rights enshrined in the CRPD are viewed through an individualistic or a relational lens on autonomy, there is agreement about the importance of relationships in exercising legal capacity. Decision-making ability cannot be viewed in isolation and may be dependent on the quality of a person’s relationships with others. Valuing autonomy is viewed as a positive obligation, even an achievement,304 which places the individual at the centre of the decision-making.
Best interests and supported decision-making
  1. Despite its paternalistic origins, the “best interests” standard for decision-making in the MCA has the potential to provide meaningful protection for a person’s autonomy where a person lacks capacity in law.305 In the past, best interests at common law (and as understood in earlier case law) has traditionally been associated with imperatives of doing good, and avoidance of harm. In its highest form it is regarded as an expression of paternalism – what is best for that person decided by someone else.

  2. Properly understood, assessing best interests recognises the importance of relationships.306 As a standard for decision-making it adds considerable transparency to the decision-making process and to the reality that there will be situations where a person is unable to make and/or participate in making a decision and the decision will need to be made for them by others.

  3. Section 4 of the MCA provides a checklist of factors to be applied in making an assessment of best interests that takes into account “a wide range of ethical, social, moral, emotional and welfare considerations”.307 It is a hybrid standard: the overall question of a person’s best interests is an objective one, but is informed by the person’s past and present wishes and the opinion of others as to what would be in their best interests. 308
297 C Foster Choosing Life and Choosing Death: The tyranny of autonomy in medical ethics and law (Hart Publishing, Portland & Oxford, 2009).

298 O O’Neill Autonomy and Trust in Bioethics (Cambridge University Press, Cambridge, 2002).

299 Relational models of autonomy have been influential among feminist theorists with some approaches more controversial than others. See C MacKenzie and N Stoljar (eds) Relational Autonomy: Feminist Perspectives on Autonomy, Agency and the Social Self (Oxford University Press, New York, 2000). See also J Herring Relational Autonomy and Family Law (Springer, New York, 2014).

300 Series, above n 252.

301 The stated purpose of the CRPD in art 1 is to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”. See also art 15, freedom from torture and inhuman and degrading treatment; art 17, respect for physical and mental integrity; and art 22, respect for privacy.

302 Series, above n 252. The Essex Autonomy project argued that the functional test for decision-making ability is consistent with the CRPD in part because of the intrinsic connection between decision-making ability and autonomy. They accepted a moderate relational position but rejected the idea that the CRPD requires recognition of active legal capacity, accepting that legal agency (being “an actor under the law”) is a fundamental component of legal capacity.

303 Donnelly, above n 254 at 113.

304 An account of autonomy as an “achievement” draws on the work of J Raz The Morality of Freedom (Oxford University Press, London, 1986) at 204, cited in M Donnelly, above n 254 at 41.

305 See Chapter 5 Best Interests: a standard for decision-making.

306 J Herring and C Foster “Welfare Means Relationality, Virtue and Altruism” (2010) 32(3) Legal Studies 480. The authors refer to the welfare principle in the Children Act and the best interests test in the MCA as synonymous.

307 Re MM (An Adult) [2007] EWHC 2003 (Fam) at [99] Munby J.

308 Best interests decisions can also result in a decision that is contrary to a person’s wishes. For example, The Mental Health Trust and others v DD by her litigation friend, the Official Solicitor: BC [2015] EWCOP 4 (Fam), a series of decisions where a 36-year-old woman with learning disabilities was ordered against her wishes to be taken to hospital for laparoscopic sterilisation. DD had six children previously who were looked after by substitute carers and with all of whom she had no ongoing contact.
  1. As understood in the MCA, best interests is also based on notions of autonomy. It makes it clear that, even though the person may lack capacity (in law), ”so far as reasonably practicable” they should be permitted and encouraged to participate “as fully as possible in any act done and any decision affecting them”309 and that their “wishes and feelings must be taken into account”.310 This approach recognises that even where a person does not have capacity to make an effective decision, they may play an important part in the decision-making process.311

  2. As Herring observes: 312
    ... that does not mean their views and feelings count for nothing. Indeed there is recognition in section 4 that even if it is not possible for P (the person) to make a decision, they should still be involved to a reasonable extent in the decision-making process and their views should be listened to.
  3. The best interests framework has been rejected by those who strongly emphasise the value of supported decision-making that is given priority in the CRPD; however, the inclusion in the process of the person with impaired capacity for decision-making can be viewed as an “appropriate measure” under art 12(3) of the CRPD to ascertain the person’s will and preferences under art 12(4).313 The English Law Commission has recommended that there should be a presumption of the person’s wishes and feelings to make the best interests standard more compliant with the CRPD.314 The Australian report has effectively rephrased the best interests standard in the language of the CRPD as “Will, Preferences and Rights Guidelines,” and there is no appreciable difference in the standard to be adhered to by the substitute decision-maker.315

  4. The “best interests” standard, by whatever name, recognises that where supported decision- making options have been exhausted, decisions by others need to be made. It can provide a transparent basis for decision-making when a person is unable to fully exercise their legal capacity and is an essential complement to a supported decision-making framework.
309 Mental Capacity Act 2005, s 4(4).

310 Mental Capacity Act 2005, s 4(6).

311 Law Commission Mental Incapacity: Item 9 of the Fourth Programme of Law Reform: Mentally Incapacitated Adults, Commission paper No 231 (HMSO, London, 1995) at 46.

312 Herring, “Best Interests and Dementia” in Foster, Herring and Doron, above n 24 at 303.

313 Donnelly, above n 24 at 192.

314 Law Commission, above n 199 at 166 [12.47].

315 ALRC Report, above n 264. Recommendation 3-3 Will, Preferences and Rights Guidelines at 77. In cases where it is not possible to determine the will and preferences of the person, the default position must be to consider the human rights relevant to the situation. The duties of the “representative” to “uphold the person’s human rights” is vague and in the writer’s opinion, less helpful than the English standard of best interests in the MCA.
  © 2019 Alison Douglass