The Relationship between Autonomy and Adult Mental Capacity in the Law of England and Wales

Paul Skowron

doi:10.1093/medlaw/fwy016

The Relationship between Autonomy and Adult Mental Capacity in the Law of England and Wales

Paul Skowron

Law

Research output: Contribution to journal › Article › peer-review

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.

Original language	English
Journal	Medical Law Review
DOIs	https://doi.org/10.1093/medlaw/fwy016
Publication status	Published - 18 Apr 2018

Bibliographical note

© 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

Access to Document

10.1093/medlaw/fwy016

PS - Autonomy and Capacity v13 edu vers
© 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
Submitted manuscript, 99.9 KB
PS - Autonomy and Capacity v16 - pure version
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
Accepted author manuscript, 107 KB

Cite this

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title = "The Relationship between Autonomy and Adult Mental Capacity in the Law of England and Wales",

abstract = "Judges in England and Wales tell three apparently contradictory stories about the relationship between autonomy and mental capacity. Sometimes, capacity is autonomy{\textquoteright}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.",

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