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Transformative Choice and Decision-Making Capacity

Black, Isra; Forsberg, Lisa; Skelton, Anthony; (2023) Transformative Choice and Decision-Making Capacity. The Law Quarterly Review , 139 pp. 654-680. Green open access

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This article is about the information relevant to decision-making capacity in refusal of life-prolonging medical treatment cases. We examine the degree to which the phenomenology of the options available to the agent—what the relevant states of affairs will feel like for them—forms part of the capacity-relevant information in the law of England and Wales, and how this informational basis varies across adolescent and adult medical treatment cases. We identify an important doctrinal phenomenon. In the leading authorities, the courts appear to count the first-personal phenomenology of the available options among the information that adolescents seeking to refuse life-prolonging treatment must understand and appreciate in order to possess capacity; adults are not held to this (higher) standard. We evaluate this differential treatment in light of philosophical work on transformative choice—decisions involving options whose sensory character, and effect on our values and preferences, are grasped only through experience itself.

Type: Article
Title: Transformative Choice and Decision-Making Capacity
Open access status: An open access version is available from UCL Discovery
Publisher version: https://www.sweetandmaxwell.co.uk/Product/Academic...
Language: English
Additional information: This version is the publisher proofs. For information on re-use, please refer to the publisher’s terms and conditions.
Keywords: health law, medical law, legal philosophy, moral philosophy, normative jurisprudence, decision-making capacity, capacity, transformative choice, transformative experience, minors, adolescents, adults
UCL classification: UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws
UCL > Provost and Vice Provost Offices > UCL SLASH
URI: https://discovery.ucl.ac.uk/id/eprint/10158278
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