Of boundaries and binaries: legal consciousness, hospice care, and the Mental Capacity Act 2005

Activity: Talk or presentationOral presentationResearch


Hospice care encompasses physical treatment and emotional, social and spiritual support which recognises what is important to each patient and supports decision making where patients cannot make decisions for themselves. My research into the use of the Mental Capacity Act 2005 (MCA) in hospices found, amongst other things, that hospice staff interpret the MCA’s principles and the patient’s role in the decision-making process in a way that reflects the ‘support paradigm’ of the UN Convention on the Rights of Persons with Disabilities. Staff understand hospices to be distinctly and self-consciously different from other palliative care settings, and this influences their legal consciousness such that the facilitation of person-centred decision making is considered to be part of good quality care rather than simply reflecting a legally acceptable approach.
Legal consciousness is concerned with the way law is experienced and understood by ordinary people in their everyday lives. Legal consciousness theory contends that we are, to some extent, in a symbiotic relationship with law, in that even as law constrains us, in articulating or enacting how it contributes to meaning and values in our daily lives, we shape the law too. In their enactment of MCA decision-making, the hospice staff who participated in my research demonstrate a different understanding of mental capacity and the responsibilities of supportive decision-makers. In so doing, they take a relational approach that softens the much-criticised binaries inherent in the MCA (particularly the capacity / incapacity binary) and blurs the boundaries between autonomous agency and decision-making capacity.
Period5 Apr 2023
Event titleSocio-Legal Studies Association Annual Conference 2023
Event typeConference
LocationDerry/Londonderry, United KingdomShow on map
Degree of RecognitionInternational