This analysis of the law's approach to healthcare decision-making
critiques its liberal foundations in respect of three categories of
people: adults with capacity, adults without capacity and adults
who are subject to mental health legislation. Focusing primarily on
the law in England and Wales, the analysis also draws on the law in
the United States, legal positions in Australia, Canada, Ireland,
New Zealand and Scotland and on the human rights protections
provided by the ECHR and the Convention on the Rights of Persons
with Disabilities. Having identified the limitations of a legal
view of autonomy as primarily a principle of non-interference, Mary
Donnelly questions the effectiveness of capacity as a gatekeeper
for the right of autonomy and advocates both an increased role for
human rights in developing the conceptual basis for the law and the
grounding of future legal developments in a close empirical
interrogation of the law in practice.
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