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Legal constructions of dementia: discourses of autonomy at the margins of capacity

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Abstract:

This paper explores the ‘right to autonomy’ for people with dementia. The provisions of the Mental Capacity Act 2005 (MCA) sought to allow more decisions to be made by those who are situated at the margins of capacity. This paper explores conceptual approaches to autonomy to highlight the limitations of contemporary regulation and the shortcomings of legal understandings of autonomy. Discourse analysis is used to analyse judicial language in a key recent case about where a person with dementia should live. It is argued that how the MCA approach has been operationalised by the courts does little to facilitate decision making for people with dementia. Possibilities for autonomy at the margins of capacity may be closed down through the discursive strategies used to determine disputes about the best interests of people with dementia. I argue that relational autonomy should be revised to include insights from person-centred care in order to empower decision making for people with dementia, and that judicial decision-makers should engage with the relationality of autonomy at the margins of capacity.

Keywords: Mental Capacity Act 2005; autonomy; dementia; discourse analysis; person-centred care

Document Type: Research Article

DOI: http://dx.doi.org/10.1080/09649069.2012.755031

Affiliations: School of Law, University of Birmingham,

Publication date: December 1, 2012

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