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The Bioethical Self Under Review: from Intrapsychic to Intersubjective Capacity

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The Bioethical Self Under Review: from Intrapsychic to Intersubjective Capacity The Bioethical Self Under Review: from Intrapsychic to Intersubjective Capacity A thesis submitted to the University of Manchester for the degree of PhD in Bioethics and Medical Jurisprudence in the Faculty of Humanities 2017 David Gibson School of Law Table of Contents Abstract .................................................................................................................................. 4 Declaration and Copyright Statement ................................................................................ 5 The Author ............................................................................................................................. 6 Acknowledgements ................................................................................................................ 7 Dedication ............................................................................................................................. 8 Table of Cases ........................................................................................................................ 9 Chapter 1: The Problem ..................................................................................................... 10 Chapter 2: Mental Capacity: An Ethical and Legal Background .................................. 16 2.1 The Sanctioned Legal Subject ..................................................................................... 18 2.2 A movement away from Paternalism .......................................................................... 27 2.3 Reclaiming Mental Capacity ....................................................................................... 33 2.4 The Mental Capacity Act 2005 ................................................................................... 42 2.5 Contemporary Issues……………………………………………………………….. 46 2.6 Mental Capacity and Autonomy ................................................................................. 48 2.7 Conclusion .................................................................................................................. 55 Chapter 3: Theoretical Approach ..................................................................................... 57 3.1 Conceptualizing Mental Capacity in Critical Jurisprudence ....................................... 55 3.2 A Narrative Identity Approach to Personal Identity ................................................... 66 3.3 Narrative Bioethics ..................................................................................................... 72 3.4 A Narrative Bioethics of Mental Capacity .................................................................. 78 Chapter 4: Outline of Papers ............................................................................................. 80 Chapter 5: Towards a Postmodern Bioethics ................................................................... 82 5.1 Introduction ................................................................................................................. 82 5.2 Postmodernism ............................................................................................................ 83 5.3 Three Postmodern Challenges for Bioethics ............................................................... 85 5.4 Emerging Postmodern Approaches in Bioethics ........................................................ 89 5.5 Beyond Deconstruction ............................................................................................... 91 5.6 A Postmodern Philosophical Bioethics ....................................................................... 93 5.7 Conclusion .................................................................................................................. 94 Chapter 6: Conceptual and Ethical Problems in the Mental Capacity Act 2005: An Interrogation of the Assessment Process ......................................................................... 96 6.1 Introduction ................................................................................................................. 96 6.2 What is Capacity? ....................................................................................................... 98 6.3 The Mental Capacity Act 2005 ................................................................................. 100 6.4 The MCA’s Challenge .............................................................................................. 103 6.5 Anorexia Nervosa and Mental Capacity Assessment ............................................... 105 6.6 Classificatory Problems ............................................................................................ 113 6.7 Moving Forward ....................................................................................................... 115 6.8 Conclusion ................................................................................................................ 118 2 Chapter 7: Situating Narrative Identity in the Bioethics of Personal Identity ........... 119 7.1 Introduction ............................................................................................................... 119 7.2 The Narrative Challenge ........................................................................................... 120 7.3 The Subjective Interpretation .................................................................................... 123 7.4 The Subject Approach and its limitations ................................................................. 126 7.5 An Intersubjective Alternative .................................................................................. 128 7.6 Reconsidering Narrative Identity’s limitations ......................................................... 131 7.7 Narrative Identity and Bioethics ............................................................................... 134 7.8 Conclusion ................................................................................................................ 135 Chapter 8: Negotiating Relationality: Mental Capacity as Narrative Congruence .... 136 8.1 Introduction ............................................................................................................... 136 8.2 Narrative Selfhood .................................................................................................... 139 8.3 Capacity Assessments and Narrative Identity ........................................................... 144 8.3.1 Situating Narrative Identity .................................................................................... 147 8.3.2 A Mimetic Account of Capacity Assessment ........................................................ 149 8.3.3 Narrative Incongruence and the Spectre of Paternalism ........................................ 154 8.4 Negotiating Relationality .......................................................................................... 158 8.5 A Narrative Theory of Capacity Assessment ............................................................ 160 Chapter 9: Conclusion ..................................................................................................... 164 Bibliography ...................................................................................................................... 173 Appendix ........................................................................................................................... 185 Word count (main text including footnotes): 64,060 3 ABSTRACT The Mental Capacity Act 2005 and the practice carried out in its name, sit in a precarious place following a House of Lords Select Committee review. The concern with greater implementation of the Act, as signalled by the House of Lords, risks silencing more significant concerns with the Act. On one level, the House of Lords echoes the Law Commission in accepting mental incapacity as an issue which required and requires a legally sanctioned response. On a more nuanced level, the Act invites healthcare practitioners and others to adopt a particular lens for understanding the self or patient, a lens which bioethical discourse may challenge, endorse or ignore. This thesis seeks to critically engage with these two aspects of the Act from both an ethical and practical dimension. A framing of contemporary practice in the context of prevailing historical mental health and bioethical discourses, facilitates the identification of mental capacity as receptive to a narrative bioethics approach. The papers in this thesis challenge the credibility of the MCA’s current understanding of capacity, itself predicated on an inconsistent understanding of the process of assessment. In doing so, this thesis suggests that an understanding of mental capacity grounded in the activity of narrative identity can inform a more nuanced understanding of the self, the assessor of capacity and the bioethicist, which is attentive to the tensions in practice by acknowledging values, relations of power and epistemic limitations. In opposition to any search for the ‘right’ way which offers certainty in dealing with incapacity, this thesis proposes a disposition of humility which resists closure and promotes ethical enquiry. 4 DECLARATION AND COPYRIGHT STATEMENT No portion of the work referred to in the thesis has been submitted in support of an application for another degree or qualification of this or any other university or other institute of learning. i. The author of this thesis (including any appendices and/or schedules to this thesis) owns certain copyright or related
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