Author: Suzanne Jarrad
Jarrad, Suzanne, 2016 Reclaiming personhood in later life: Towards a new model of decision-making, Flinders University, Flinders Law School
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The freedom to be autonomous is highly valued in society, and is a key principle underpinning law. Literature indicates that the freedom to make our own decisions is affirming of identity and selfhood, and persons can experience powerlessness when autonomy is not recognised. Ageism, paternalism, medicalised practices, and a variable understanding of the use of law undermines some of the protections of law in enhancing the autonomy of vulnerable older persons who may not meet the capacity threshold. At the same time, new understandings about decision-making, autonomy and personhood challenge this traditional approach towards persons and its exclusionary nature, with new concepts of autonomy emerging. Based on empirical research including focus groups and in-depth case studies, this thesis explores the moral and legal personhood of older persons experiencing cognitive changes. This thesis engages a unique approach that recognises and integrates cross-disciplinary knowledge and perspectives towards the phenomenon of decision-making. The socio-legal findings give substance to the idea that autonomy is contextual and relational, and assist us to identify structures and relationships that diminish autonomy and reduce well-being. The findings illustrate the way law is interpreted in the everyday world, and how law is invoked, avoided or adapted in relation to decision-making. The thesis argues that greater attention to person-centred practices is required, which recognise the value of the person beyond cognitive definitions, and which maximise autonomy and personhood through inclusive decision-making. Capacity assessments, though legally necessary in a minority of situations, should be regarded as a last resort. This approach requires community and health professionals to have a greater knowledge of law. It also demands a better understanding of the interface between law and society, respect for personhood, and a focus on justice. The thesis concludes by proposing legal and cultural strategies that would enable person-centred decision-making.
Keywords: Decision making, Capacity, Dementia, Personhood, Autonomy, Supported decision making, Law, Competence, Cognitive impairment
Subject: Law thesis
Thesis type: Doctor of Philosophy
School: Flinders Law School
Supervisor: Margaret Davies