Safeguarding Vulnerable Autonomy? Situational Vulnerability, the Inherent Jurisdiction, and Insights from Feminist Philosophy.

Jonathan Lewis

doi:10.1093/medlaw/fwab010

Abstract

The High Court continues to exercise its inherent jurisdiction to make declarations about interventions into the lives of situationally vulnerable adults with mental capacity. In the light of the protective responses of health care providers and the courts to decision-making situations involving capacitous vulnerable adults, this article has two aims. The first is diagnostic. The second is normative. The first aim is to identify the harms to a capacitous vulnerable adult’s autonomy that arise based on the characterisation of situational vulnerability and autonomy as fundamentally opposed concepts or the failure to adequately acknowledge the conceptual relationship between them at common law. The second (normative) aim is to develop an account of self-authorised, intersubjective autonomy based on insights from analytic feminist philosophy. This approach not only attempts to capture the autonomy of capacitous vulnerable adults and account for the necessary harms to their autonomy that arise from standard common law responses to their situational vulnerability, it is also predicated on the distinctions between mental capacity, informed consent, and autonomy, meaning that it is better placed to fulfil the primary aim of the inherent jurisdiction—to facilitate the autonomy of vulnerable adults with capacity.

Highlights

Increased legal, ethical, and philosophical attention on different conceptions of vulnerability have paralleled developments concerning the respect for, and protection of, patient autonomy
The first aim is to identify the harms to a capacitous vulnerable adult’s autonomy that arise based on the characterisation of situational vulnerability and autonomy as fundamentally opposed concepts or the failure to adequately acknowledge the conceptual relationship between them at common law
This approach attempts to capture the autonomy of capacitous vulnerable adults and account for the necessary harms to their autonomy that arise from standard common law responses to their situational vulnerability, it is predicated on the distinctions between mental capacity, informed consent, and autonomy, meaning that it is better placed to fulfil the primary aim of the inherent jurisdiction—to facilitate the autonomy of vulnerable adults with capacity

Summary

INTRODUCTION

Increased legal, ethical, and philosophical attention on different conceptions of vulnerability have paralleled developments concerning the respect for, and protection of, patient autonomy. A Local Authority v Mrs A and Mr A [2010] EWHC 1549 (Fam) (COP) at [79] per Bodey J. at law.[35] Notably, the first standard response to situational vulnerability at common law fails, at least in principle, to fulfil its stated aim - to ‘allow the individual to be able to regain their autonomy of decision making’. Autonomy,[38] such an approach ignores the possibility that situationally vulnerable adults with capacity can reason soundly in accordance with their own values, desires, and motives and come to a decision that coheres with those motivating reasons, thereby fulfilling the conditions of rational deliberation that philosophers and moral psychologists take to be a necessary feature of autonomy

ANALYTIC FEMINISM AND ITS RESPONSES TO VULNERABILITY AND AUTONOMY

ACCOUNTING FOR THE ENTWINEMENT OF AUTONOMY AND VULNERABILITY

CONCLUSION