Healthcare Decision Making and the Law: Autonomy, Capacity and the Limits of Liberalism

Citation

(2011), "Healthcare Decision Making and the Law: Autonomy, Capacity and the Limits of Liberalism", International Journal of Health Care Quality Assurance, Vol. 24 No. 5. https://doi.org/10.1108/ijhcqa.2011.06224eaa.015

Healthcare Decision Making and the Law: Autonomy, Capacity and the Limits of Liberalism

Healthcare Decision Making and the Law: Autonomy, Capacity and the Limits of Liberalism

Article Type: Recent publications From: International Journal of Health Care Quality Assurance, Volume 24, Issue 5

Mary DonnellyCambridge University Press2010ISBN-10: 978-0-521-11831-6

Keywords: Healthcare decision making, Healthcare and law ethics

This analysis of the law’s approach to healthcare decision-making critiques its liberal foundations in respect of three categories of people: adults with capacity, adults without capacity and adults who are subject to mental health legislation. Focusing primarily on the law in England and Wales, the analysis also draws on the law in the US, legal positions in Australia, Canada, Ireland, New Zealand and Scotland and on the human rights protections provided by the ECHR and the Convention on the Rights of Persons with Disabilities. Having identified the limitations of a legal view of autonomy as primarily a principle of non-interference, Mary Donnelly questions the effectiveness of capacity as a gatekeeper for the right of autonomy and advocates both an increased role for human rights in developing the conceptual basis for the law and the grounding of future legal developments in a close empirical interrogation of the law in practice.

Contents include:

• •

  Introduction.

• •

  Autonomy: variations on a principle.

• •

  Autonomy in the law.

• •

  Capacity: the gatekeeper for autonomy.

• •

  Capacity assessment in practice.

• •

  Autonomy, rights and decision making for people lacking capacity.

• •

  Treatment for a mental disorder: a case apart.

• •

  Conclusion.