LESSONS FROM ODYSSEUS AND BEYOND: WHY LACKING MORALITY MEANS LACKING TOTALITY IN THE MENTAL CAPACITY ACT 2005

Abstract

The law of England and Wales provides that an adult with capacity has the right to refuse medical treatment both contemporaneously and in an advance refusal. Legislation separates general advance refusals of treatment from advance refusals of life-sustaining treatment. The law, outlined in ss.24 to 26 of the Mental Capacity Act 2005, is stricter for creation of the latter. These sections brought with them a new age of interests by purporting to elevate individual autonomy as the primary concern. Beginning with the classical tale of Odysseus and a general discussion of the value to be found in a law seeking to preserve individual autonomy, this thesis seeks to act as a critique of the current enactment in practice.

The provisions are already under-used and under-applied; without change, they may never reach the stage where they are ethically and practically viable. It is argued that the advance refusals provisions are not taking full effect due to a combination of lacking moral grounding and general dismissal of key ethical dilemmas at the forefront of application. Building on this, the moral basis for this thesis is found in Alan Gewirth’s Principle of Generic Consistency (PGC) which links directly with the general application of human rights. The PGC becomes a compass for determining how best to treat persons when addressing the three most prominent challenges faced by the 2005 Act which are: the debate between the conferred right of autonomy versus the right to life; the issue of personhood; and, the personal identity problem. Ultimately, unless framework provisions are strengthened, and the Mental Capacity Act 2005 is rethought in light of prominent ethical, legal and social considerations, the constraints of the Act on paper will continue to suppress the important underlying values promulgating individual autonomy.