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Vol 21 No 9 Sept/Oct 2016

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

ISBN13: 9781107470927
Published: November 2014
Publisher: Cambridge University Press
Country of Publication: UK
Format: Paperback (Hardback in 2010)
Price: £23.99
Hardback edition , ISBN13 9780521118316

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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.

Focussing primarily on the law in England and Wales, the analysis also draws on the law in the United States, 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.

  • Evaluates the law in respect of healthcare decision-making for adults with and without capacity
  • Provides readers with an up-to-date treatment of the law in England and Wales, including detailed analysis of the Mental Capacity Act 2005 and Mental Health Act 2007 and of human rights developments under the ECHR and under the Convention on the Rights of Persons with Disabilities
  • Grounds the legal discussion in empirical research, allowing readers to assess the operation of the law in practice
  • Critiques the role of autonomy as non-interference and advances an alternative theoretical basis for the law which will stimulate discussion regarding the appropriate legal and ethical basis

Medical Law
1. Autonomy: variations on a principle
2. Autonomy in the law
3. Capacity: the gatekeeper for autonomy
4. Capacity assessment in practice
5. Autonomy, rights and decision-making for people lacking capacity
6. Treatment for a mental disorder: a case apart