The space between second-personal respect and rational care in theory and mental health law

Kong, Camillia (2015) The space between second-personal respect and rational care in theory and mental health law. Law and Philosophy , ISSN 0167-5249.

Abstract

In recent human rights and legal instruments, individuals with impairments are increasingly recognised as agents who are worthy of respect for their inherent dignity and capacity to make autonomous decisions regarding treatment and care provisions. These legal developments could be understood using Stephen Darwall’s normative framework of the second person standpoint. However, this paper draws upon phenomena – both in legal developments and recent court cases – to illustrate theoretical difficulties with the contractualist underpinnings of Darwall’s account if applied to questions of what is owed to individuals with disabilities. I argue that, under Darwall’s framework, whether the threshold for second-personal competence has been met will determine whether respect or rational care is owed to them. This fact distorts our understanding of what we owe to persons with mental impairments—in part because it limits respect to relations that are symmetrical and reciprocal. In light of these challenges the paper offers an account of hermeneutic competency, which can be applied to non-reciprocal and asymmetrical relationships. This alternative account will be of practical import to judicial determinations of best interests under the Mental Capacity Act 2005 in England and Wales. It will also be of broader theoretical interest to any legal system that deals with people with mental disabilities.

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