Disabling Autonomy: The Role of Government, the Law, and the Family

Abstract

In this paper I am concerned to explore the ways in which the State, through the development of social policy, legislation, and case law seeks to allow or to enable its citizens to exercise personal autonomy. In this context I will suggest that people who have a physical impairment, which in practical terms renders them disabled, may face constraints on their autonomy which arise from, and are compounded by, a complex relationship between social policy and the law as this operates in the public domain, and the particular consequences of policy implementation as these are experienced in the private domain of family life. My argument derives from three basic and interrelated contentions. First, that while the law has developed strategies for resolving issues of autonomy which are associated with mental incapacity, it has yet to grapple with comparable problems as these are expressed through physical incapacity. The way in which the law responds to questions of mental capacity is premised upon a concern to protect negative freedom, that is freedom from interference, in so far as this is consistent with the public good and minimum requirements of social regulation. However, physical incapacity demands attention, not only to negative freedom, but to positive freedom in the sense of choosing, acting upon, and pursuing personal goals. Second, an examination of how negative and positive freedom inform autonomous action suggests that physically impaired people are disabled by current policy and legislation which, whilst addressing their political and civil rights, has left their social and economic rights relatively underdeveloped. Third, that community care as comprising specific policy and legislative objectives, relies heavily upon the provision of care within the family. Given the dominance of an ideology which eschews State intervention generally, and the particular difficulties attendant upon State