Skip to main content

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, 34 (4). pp. 433-467. ISSN 0167-5249. E-ISSN 1573-0522. (doi:10.1007/s10982-015-9228-y) (KAR id:58525)

PDF Author's Accepted Manuscript
Language: English
Download this file
(PDF/498kB)
[thumbnail of CKong_Second-Personal Competence and Rational Care.pdf]
Preview
Request a format suitable for use with assistive technology e.g. a screenreader
Microsoft Word Author's Accepted Manuscript
Language: English

Restricted to Repository staff only
[thumbnail of CKong_Second-Personal Competence and Rational Care.docx]
Official URL:
http://dx.doi.org/10.1007/s10982-015-9228-y

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.

Item Type: Article
DOI/Identification number: 10.1007/s10982-015-9228-y
Uncontrolled keywords: Second-person standpoint;Respect;Care;Darwall;Contractualism;Dignity;Mental health law;Best interests;Hermeneutics;Anorexia nervosa
Subjects: B Philosophy. Psychology. Religion
B Philosophy. Psychology. Religion > BJ Ethics
K Law > KD England and Wales
Divisions: Divisions > Division of Arts and Humanities > School of Culture and Languages
Funders: Organisations -1 not found.
Depositing User: Camillia Kong
Date Deposited: 10 Nov 2016 13:08 UTC
Last Modified: 17 Aug 2022 11:01 UTC
Resource URI: https://kar.kent.ac.uk/id/eprint/58525 (The current URI for this page, for reference purposes)

University of Kent Author Information

  • Depositors only (login required):

Total unique views for this document in KAR since July 2020. For more details click on the image.