6 The Intersection of Human Rights and Decision Making Capacity Legislation with Person Centred Approaches

Abstract

Abstract Background A major focus on decision making capacity (as opposed to cognitive capacity and competence) legislation in many Western countries is the integration of a human rights approach focused on self-determination and autonomy. This paper examines modern day concepts of personhood and person centred care and presents Irish and United Kingdom legal commentaries which focus on health services’ and society's approaches to risky decision making. Integrating human rights into decision making capacity legislation has been central in contemporary discourses on health and welfare. Methods A literature review was undertaken charting the emergence of personhood, person centred care and human rights. Case studies of influential legal commentaries in Ireland and the United Kingdom where decision-making capacity was addressed were mapped to person centred care principles. Results Findings point to a convergence of discourses of human rights in contemporary approaches to health and social care as well as the evolution of legislation to support person centredness in fostering safeguarding and promoting autonomy and self-determination. Specific legal commentaries point to the need of health and social care to be mindful of paternalism and to conceptualise the concept of ‘risk’ with a particular emphasis on the inclusion and defence of the voice of the older or vulnerable person. Conclusion The intrinsic worth of each human is articulated through an implicit and explicit vindication of their human rights. The emergence of the third generation of human rights has argued the value of self-determination and autonomy, articulated through robust national legislation on decision-making capacity based on the core principles of person centred care approaches. This move from paternalism is imperative and is imbued in contemporary legislation and legal commentaries, which has noted the need for revisions in health and social care case management perspectives.