The Ethics of Legal Capacity : Protection from Harm and Enhancing Autonomy

1. The Ethics of Legal Capacity:Protection from Harm and Enhancing Autonomy A presentation to the AABHL Conference Auckland, July 2012 Alison Douglass, Barrister Lynne Bowyer, Bioethics Centre, University of Otago A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

2. Overview • fundamentally relational understanding of autonomy and personhood • implications for the understanding of legal capacity, assessment and decision-making A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

3. Dominant view of autonomy • rational, self-conscious individual • capable of directing her own life based on a process of rational reflection • unimpeded by the choices and actions of others. • devoid of relational obligations or any ethically informed historical tradition. • separateness and individualism A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

4. A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012 embodied discursive beings fundamentally interdependent embedded in socio-cultural networks of shared meaningful practices at a particular place and time.

5. A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012 Autonomy - enacting and sustaining meaningful and coherent patterns of activity that rightfully position us in our shared world.

6. Contextual understanding Pre-reflective Embodied interaction A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

7. A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012 normative interactions inform the way that we live constitute our interests on-going interactions reflect our interests others come to recognise the values that we live by

8. Autonomy • normatively informed • context specific • on-going • interdependent • enhanced or diminished by others A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

9. Capacity and legal significance Legal protection from harm for those that are vulnerable due to diminished capacity A relational approach to autonomy can enhance and support decision-making: • the capacity assessment process • care and welfare decisions made in a person’s “best interests” A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

10. Right to refuse medical treatment • NZBORA “Everyone…(who has capacity) has the right to refuse medical treatment • English cases Re TcfRe C • Capacity becomes an issue when we disagree with the nature of the decision A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

11. Legal capacity and decision-making • Mental illness and refusal to consent to treatment • Dementia and family conflict between siblings over supporting parent/diminished ability to care for self • Intellectual disability and vulnerability to undue influence/abusive relationships A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

12. Protection of Personal and Property Rights Act 1988 • Legal framework in New Zealand for assessing a person’s capacity to make care and welfare decisions • An act to protect and promote a person’s rights • EPOA, appointment of Welfare Guardian and personal “one-off” Court orders make decisions in a person’s best interests A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

13. PPPR Act – Primary objectives Section 8: • To make the least restrictive intervention possible …having regard to the degree of that person’s incapacity: • To encourage the person to exercise and develop such capacity he/she has to the greatest extent possible A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

14. Legal test Whether a person: “… lacks wholly (or partly) the capacity to understand the nature and to foresee the consequences of decisions in respect of matters relating to his or her personal care and welfare”; or “…whollylacks the capacity to communicate decisions..” A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

15. Factors • Understanding relevant information; • Manipulate information; • Appreciate the consequences, and • Expressing a choice A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

16. Capacity assessment • Functional approach Objective – diagnostic threshold/cognitive functions Subjective –task, time, and situation specific • Procedural fairness – Court appointed lawyer A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

17. Best Interests • A measure of good practice? • Relies on the assumption that there is a shared view of what is in a person’s “best interests” • Balance between a person’s expressed wishes and reasonable treatment/response A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

18. The Ethics of Legal Capacity • Robust and procedurally fair assessment that a person meets the legal threshold • “Best Interests” test requires an understanding of all dimensions of a person’s social situation and relationships • Relational autonomy is an approach to understanding how to apply the law A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012