1. A presentation to the AABHL Conference Auckland, July 2012 Alison Douglass, Barrister Lynne Bowyer, Bioethics Centre, University of Otago A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012 1

2. fundamentally relational understanding of autonomy and personhood implications for the understanding of legal capacity, assessment and decision-making 2 A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

3. rational, self-conscious individual capable of directing her own life based on a process of rational reflection unimpeded by the choices and actions of others. devoid of relational obligations or any ethically informed historical tradition. separateness and individualism 3 A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

4. 4 embodied discursive beings fundamentally interdependent embedded in socio-cultural networks of shared meaningful practices at a particular place and time.

5. A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012 5 Autonomy - enacting and sustaining meaningful and coherent patterns of activity that rightfully position us in our shared world.

6. 6 Embodied interaction Pre- reflective A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

7. 7 normative interactions inform the way that we live constitute our interests on-going interactions reflect our interests others come to recognise the values that we live by

8. normatively informed context specific on-going interdependent enhanced or diminished by others 8 A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

9. Legal protection from harm for those that are vulnerable due to diminished capacity A relational approach to autonomy can enhance and support decision-making: the capacity assessment process care and welfare decisions made in a persons best interests A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012 9

10. NZBORA Everyone…(who has capacity) has the right to refuse medical treatment English cases Re T cf Re C Capacity becomes an issue when we disagree with the nature of the decision 10 A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

11. Mental illness and refusal to consent to treatment Dementia and family conflict between siblings over supporting parent/diminished ability to care for self Intellectual disability and vulnerability to undue influence/abusive relationships 11 A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

12. Legal framework in New Zealand for assessing a persons capacity to make care and welfare decisions An act to protect and promote a persons rights EPOA, appointment of Welfare Guardian and personal one-off Court orders make decisions in a persons best interests 12 A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

13. Section 8: To make the least restrictive intervention possible …having regard to the degree of that persons incapacity: To encourage the person to exercise and develop such capacity he/she has to the greatest extent possible 13 A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

14. Whether a person: … lacks wholly (or partly) the capacity to understand the nature and to foresee the consequences of decisions in respect of matters relating to his or her personal care and welfare; or …wholly lacks the capacity to communicate decisions.. 14 A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

15. Understanding relevant information; Manipulate information; Appreciate the consequences, and Expressing a choice A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012 15

16. Functional approach Objective – diagnostic threshold/cognitive functions Subjective –task, time, and situation specific Procedural fairness – Court appointed lawyer 16 A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

17. A measure of good practice? Relies on the assumption that there is a shared view of what is in a persons best interests Balance between a persons expressed wishes and reasonable treatment/response 17 A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012

18. Robust and procedurally fair assessment that a person meets the legal threshold Best Interests test requires an understanding of all dimensions of a persons social situation and relationships Relational autonomy is an approach to understanding how to apply the law 18 A Douglass and L Bowyer; The Ethics of Legal Capacity AABHL Conference July 2012