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‘…What God and the Angels Know of us?’ Character, Autonomy, and best Interests in Minimally Conscious State

Research output: Contribution to journalArticle

Original languageEnglish
Article numberfwx051
Pages (from-to)392-420
Number of pages29
JournalMedical Law Review
Volume26
Issue number3
Early online date13 Nov 2017
DOIs
DateAccepted/In press - 20 Oct 2017
DateE-pub ahead of print - 13 Nov 2017
DatePublished (current) - 1 Aug 2018

Abstract

Determining the best interests of incapacitated patients has been observed to be an opaque area of the law, and this is no less so in decisions about the (non-)treatment of patients in the minimally conscious state. A systematic examination of the way best interests are used in judgments relating to this population suggests that narratives involving the character of the patient frequently form an important plank of judicial reasoning. Since insights into the concept of best interests may be gained by an engagement with the philosophy of well-being, I identify the court’s character-based approach with perfectionist theories of well-being. These use human nature to furnish an objective list of abilities needed for human flourishing. Guided by the Mental Capacity Act (MCA), this list becomes focused primarily upon autonomy. Incapacitated patients are assumed to have wishes, but to lack agency. Judges search for these wishes in narratives about the patient and supply the means to exercise these wishes. This analysis suggests three concerns about the court’s approach: first, by placing so great a weight on autonomy, the law offers an impoverished account of human nature; second, adversarial law encourages partial determinations of character, and this raises concerns about whether the courts are equipped to explore the complexities of character narratives; and, third, experimental psychology indicates character is not as predictable as an assessment under MCA requires. While character narratives may unburden decision-makers, this analysis suggests the limits of autonomy may have been exceeded in this area of the law.

    Research areas

  • Minimally conscious state, best interests, character, narrative

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