Disabling Autonomy: The Role of Government, the Law, and the Family
| DOI | http://doi.org/10.1111/j.1467-6478.1997.tb00005.x |
| Published date | 01 September 1997 |
| Author | Carole Smith |
| Date | 01 September 1997 |
JOURNAL
OF
LAW
AND
SOCIETY
ISSN:
0263-323)
pp.
421-39
VOLUME
24,
NUMBER
3,
SEFTEMBER
1997
Disabling Autonomy: The Role
of
Government, the Law,
and
the Family
CAROLE
SMITH*
INTRODUCTION: LEGAL CAPACITY AND AUTONOMY
In this paper I am concerned to explore the ways in which the State, through
the development of social policy, legislation, and case law seeks to allow or
to enable its citizens to exercise personal autonomy. In this context I will
suggest that people who have a physical impairment, which in practical terms
renders them disabled, may face constraints on their autonomy which arise
from, and are compounded by, a complex relationship between social policy
and the law as this operates in the public domain, and the particular conse-
quences of policy implementation as these are experienced in the private
domain of family life. My argument derives from three basic and inter-
related contentions. First, that while the law has developed strategies for
resolving issues of autonomy which are associated with mental incapacity,
it has yet to grapple with comparable problems as these are expressed
through physical incapacity. The way in which the law responds to questions
of mental capacity is premised upon a concern to protect negative freedom,
that is freedom from interference, in
so
far as this is consistent with the
public good and minimum requirements
of
social regulation. However,
physical incapacity demands attention, not only to negative freedom, but to
positive freedom in the sense of choosing, acting upon, and pursuing
personal goals. Second, an examination
of
how negative and positive
freedom inform autonomous action suggests that physically impaired people
are disabled by current policy and legislation which, whilst addressing their
political and civil rights, has left their social and economic rights relatively
underdeveloped. Third, that community care as comprising specific policy
and legislative objectives, relies heavily upon the provision of care within
the family. Given the dominance of an ideology which eschews State inter-
vention generally, and the particular difficulties attendant upon State
*
Senior Lecturer, Department
of
Sociul Policy and Sociul Work, University
of
Manchester, Williumson Building, Oxford Road, Munchester
MI3
9PL,
England
42
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and
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Street.
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MA
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USA
intervention in family life, further disability may be incurred by an erosion
of autonomy which is invisible to the public eye, and which remains unchal-
lenged by the State and the law.
The law takes the following view of autonomy and mental capacity:
English law has now fixed 18
as
the age of majority and when people reach this age the
law presumes that they have sufficient intelligence and maturity to take decisions for
themselves. Attention needs to be focused, therefore,
on
two groups of people: children
and young
persons
under the age of 18 (minors), and adults, who for whatever reason,
lack whatever the law may identify as the necessary capacity to take their own decisions.’
Historically, children’s autonomy has been defined and constrained by their
perceived vulnerability and their dependence upon adults for nurture and
protection. Within
a
legislative framework, they are deemed to be intellec-
tually and experientially ill-equipped to make informed decisions about their
own best interests and, thus, with limited statutory exceptions regarding
consent to medical treatment,* they are presumed to lack capacity. The
judgement
in
Gillick
v.
West Norfolk and Wisbech Health Authority3
was
therefore hailed as a significant step forward in allowing that
a
child under
sixteen years old could, under certain circumstances, be construed as compe-
tent to consent to medical treatment. The circumstances, however, are that
a child should be of sufficient understanding and intelligence to comprehend
the nature and significance of the decision which they are making. Much
controversy has followed the Gillick judgement. Subsequent judicial deci-
sions at common law have been challenged for their inclination to undermine
the Gillick principle by a readiness to find children incompetent and by an
enthusiasm for employing the
parens patriae
jurisdiction to superimpose
welfare considerations upon a child’s right to de~ide.~ With reference to the
way in which childhood is socially constructed, and legally interpreted, it is
argued that children make well-informed and complex decisions in the course
of everyday life, that the right to make decisions should not be confused
with an imperative to make the right decisions, and that the distinction
between children as essentially incompetent, and adults as definitionally
competent, cannot stand up to scrutiny.5
Judicial interference with children’s autonomy has preferred welfare above
freedom from constraint. Lord Donaldson’s comments in
Re W.6
serve to
exemplify this approach:
As
Lord Hailsham of
St
Marylebone
LC
put it in
Re
E.
(A
Minor)
Wurdship:
Sferilisufion)
(19881 A.C. 199 at
202
C
. . .
the ‘first and paramount consideration
[of
the court]
is
the well-being, welfare
or
interests [of the minor]’ and
I
regard it as self-
evident that this involves giving them the maximum degree
of
decision making which is
prudent. Prudence does
not
involve avoiding all risk, but it does involve avoiding taking
risks which, if they eventuate, may have irreparable consequences
or
which are dispro-
portionate
to
the benefits which could accrue from taking them.
Contrast this view with the reasoning in
Re
C.
where an adult having
gangrene in his foot sought an injunction to restrain the hospital from ampu-
tating
his
leg, at any time, without his express consent, despite the probability
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of his death if he refused this form of treatment. The court held that
C.,
despite suffering from chronic mental illness, had the capacity to understand
‘the nature, purpose and effects’
of
an amputation and the possible conse-
quences of withholding his consent. Thorpe
J
said:
Prima Facie every adult has the right and capacity to decide whether
or
not he will
accept medical treatment, even if a refusal may risk permanent injury to his health
or
even lead to premature death. Furthermore,
it
matters not whether the reasons for the
refusal were rational
or
irrational, unknown
or
even non-existent. This is
so,
notwith-
standing, the very strong public interest
in
preserving the life and health of all citizens.’
Of course, the presumption of capacity is rebuttable. A long line of
common law cases has established the means of responding to those situ-
ations where an adult is deemed to lack mental capacity to decide in their
own
best interests.
For
example, when the case of
Re
F.*
reached the House
of Lords, Lord Brandon stated that the court, by way of its inherent juris-
diction, could make a declaration concerning the lawfulness of a proposed
operation. A declaration cannot amount to an approval, as the Court
of
Appeal wished to suggest, but can establish by judicial process, ‘whether the
proposed operation is in the best interests of the patient and therefore lawful,
or
not in the patient’s best interests and therefore unlawful’.9 Once an adult
is found to lack the mental capacity to make an informed decision, their
status reverts to that of a child, and their welfare
or
best interests becomes
the definitive test
for
a court in deciding whether a proposed action is lawful.
Similarly, statutory provision now governs many situations in which State
intervention is required to safeguard the welfare of individuals,
or
other
people with whom they might come into contact, where they are suffering
from a ‘mental disorder’
or
some other impairment. This framework of
‘protective’ legislation includes the guardianship provisions under
s.
7
of the
Mental Health Act 1983, which concern people with a ‘mental disorder’,
and the power of compulsory removal from home in relation to people who
‘are suffering from grave chronic disease
or,
being aged, infirm
or
physically
incapacitated and living in insanitary conditions’ under
s.
47 of the National
Assistance Act 1948. Additionally, the Law Commissionlo has recently
completed a lengthy review of decision making for mentally incapacitated
adults, resulting in a draft Bill. The Law Commission’s intention is that:
The Incapacity Bill would bring under a single legislative umbrella
all
health, welfare,
and property decisions
for
people who lack mental capacity, either because they are
unable
to
communicate
a
decision on the question, despite
all
practicable steps
to
enable
them
to
do
so,
or
because they are unable
to
make a decision
for
themselves as a result
of mental incapacity.”
There has been long-standing concern, both nationally and internationally,
about the State’s role
in
relation to those people who are perceived as being
unable to make decisions in their
own
best interests and those whose well-
being is at risk because they are not receiving adequate care.12 The debate
has focussed on three major areas which have informed the Law
Commission’s review of existing arrangements. These are first, the extent
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to which an individual’s right to autonomy and independence should be
protected; second, the necessity of ensuring that any intervention is limited
and responsive only to the circumstances which give rise to it; third, the
relationship between an individual’s right to autonomy and their right to
protection from abuse, neglect, and exploitation.
MENTAL CAPACITY AND PHYSICAL INCAPACITY: WHAT
PRICE AUTONOMY?
Despite inherent difficulties in attempting to unravel the complex issues
associated with mental incapacity, considerable progress has been made in
defining how and when the State should intervene. However, a recent case
heard in the High Court and subsequently in the Court of Appeal13 has
opened up a whole new ‘can of worms’. When the case came before the
High Court, Steven, the plaintiff, was just under eighteen years old. Steven,
although having some learning disability, is capable of making his own
decisions and is able to express his wishes; the court was therefore satisfied
that the issue of mental incapacity did not arise. The major issue before the
court related to Steven’s physical incapacity. He is severely physically
disabled and while able to make his own decisions, is unable to act upon
them without practical help. The local authority had obtained a care order
in respect of Steven under
s.
31
of the Children Act
1989,
because it was in
conflict with his mother about how best to meet his needs. Both Steven and
the local authority agreed that his placement at a specialist residential school
met his need for education, physical and intellectual stimulation, and every-
day care. The school was near to Steven’s home
so
that he could stay with
his family during school holidays and weekends. However, a major problem
arose because Mrs Vickers, Steven’s mother, felt that she had a better under-
standing than professional workers about what was in his best interests and
she wished to provide full-time care for him. When Steven went home he
was unable to return to the residential school unless his mother took him
or
allowed someone to come and collect him; evidence suggested that she
found various means of obstructing Steven’s return and that he did not
receive important elements
of
physical stimulation, education, and oppor-
tunities for social interaction while he remained at home. Thus, approaching
his eighteenth birthday, Steven became concerned about what would happen
when the care order lapsed and the local authority could no longer intervene
to ensure that his wishes, in respect of where he should live, could be
enforced. The residential school was prepared to maintain Steven’s place-
ment and to provide the necessary support for him to move into a bungalow
in the grounds with a small number of other disabled adults. There was no
problem with funding. The problem, and the central issue of legal dispute
between Steven and his parents, particularly his mother, was how to protect
Steven’s autonomy when he was not physically able to act upon his decisions.
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Although much attention has been given to developing and refining the
law with regard to mental incapacity, there is
no
effective and appropriate
remedy for individuals in Steven’s situation who are mentally able but
physically unable to act. Steven’s lawyers were therefore reliant
on
a two-
stage approach. First, they had to persuade the court that Steven had a legal
right to choose where he wanted to live and with whom he wanted to asso-
ciate. Once convinced that these were indeed legal rights, rather than moral,
social
or
political the court could use its discretion and make a
declaration to this effect. Second, flowing from a judicial declaration about
Steven’s rights, the court was requested to make an injunction against his
parents, in order to prevent them infringing
or
in any way obstructing the
exercise of these rights. Steven’s parents mounted a powerful challenge to
his application. They argued that,
on
the one hand, the court had no juris-
diction to make a declaration because Steven’s wishes were
not
based on
legal rights but
on
personal freedoms, and in any event, there was not an
immediate issue of infringement before the court. On the other hand, even
if Steven was seeking a remedy which the court had jurisdiction to give, it
should apply its discretion to do nothing, since an injunction was inappro-
priate in the complex and sensitive sphere of family relationships and was
likely to do more harm than good. The High Court found in Steven’s favour
and Johnson
J
commented:
As
to the injunctions, their existence will potentially put the parents at risk ofenforcement
proceedings at the instance
of
their son.
In
a situation such as the present that seems to
me
to
be highly undesirable.
On
the other hand there seems to me to be here a real risk
of infringement of
S’s
freedom. The injunctions sought are scarcely onerous.
I
exercise
the discretion of the court to make the injunction against the mother but not against the
father who has given no reason to believe that he would impede
S’s
freedom of choice.’l
Steven’s parents appealed. The Court of Appeal based its judgement
on
two major points. First, the Court of Appeal held, following the cases of
Guaranty Trust Company
of New
York
v.
Hunnay and Co
[1915]
2
K.B.
536
and
Gouriet
v.
Union
of
Post
Office
Workers
[I9781 A.C.
453,
that it was
not possible to identify any
legul
dispute between Steven and his parents in
the sense that any conflict arose from the frustration of his
legul
rights. The
President, Sir Stephen Brown, said:
I
do not believe that an issue has been established in this case which can give rise to the
consideration of legal rights. The mere statement
of
a generally accepted right is not in
point. The real purpose
of
this application was
to
achieve the injunctive relief which
would afford
to
S
presumably to insist that he should
be
able, against his mother’s issues
and actions, if she did
so
act,
to
attend the particular school.16
Thus, the High Court did not have jurisdiction to make the declaration
about Steven’s rights of residence and free association, and therefore had
no power to attach any injunction against his mother.
Second, noting that both declaratory and injunctive relief depend
on
the
courts’ discretion, Sir Stephen Brown asserted that, even if the court had
jurisdiction to give such relief, the exercise of discretion in the context of
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this case ‘was wrong and wholly wrong’, (at p.14) He viewed the possibility
of a penal sanction against Steven’s mother as raising an ‘appalling vista’.
With regard to injunctive relief he commented:
In the family context this, in my judgement would have the potential effect of destroying
the family relationships. This family is not going to
be
assisted in the present state of
the law by this
course.
This is a problem which has to be worked out with goodwill by
all the parties in~olved.’~
Waite
LJ
added his concern about legal intervention in sensitive family matters:
This is essentially
a
family problem, in which
S,
his mother, father and sister are bravely
facing the trial imposed by the severe physical disability of one of its members.Each is
doing his
or
her best to respond to the demands of
S’s
plight. Although views may differ
as
to how best that this
is
to be done, there can be no justification, benevolent though
the motives behind it may be, for adding to the family’s difficulties the further tensions
and possible discord introduced by declaratory and injunctive relief with
all
the conse-
quences which enforcement would inevitably involve.”
It was evidently the Court of Appeal’s view that, even if a court had the
jurisdiction to act, it should exercise its discretion not intervene in the sensi-
tive and emotionally laden dynamics of family life. As Waite
W
said, this
was a ‘family problem’.
The upshot of all this, is that Steven, like anyone else, can make a whole
range of choices and decisions. In certain important respects, however, he
cannot act without the help
of
others. A physically impaired person’s right
to autonomy is essentially compromised in the absence of their capacity to
take independent action. There are likely to be many more adults in Steven’s
situation, whose difficulties are invisible to the public eye. The only ray of
light on their horizon may be Sir Stephen Brown’s comment, in the Court
of Appeal, that Parliament might like to clarify the rights of people who are
severely physically, but who are not mentally, impaired.
NEGATIVE AND POSITIVE FREEDOM: TOWARDS AUTONOMY
It is possible to take a narrow view
of
the Court of Appeal’s decision in
Steven’s case; the court had no jurisdiction to exercise its discretion because
a legal issue could not be proved. It is also possible, however, to take a
broader view; judicial comments suggest an unwillingness to intervene in the
essentially private and complex affairs
of
the family where a caring, albeit
overprotective mother, thought that she was the best arbiter
of
her son’s
needs and wanted, as all good mothers should, to provide him with care and
protection. The Court’s approach throws into sharp relief the problematic
interface between public and private domains where the State and the law
must design, interpret, and implement social policy which significantly bears
upon an individual’s negative and positive freedoms. How the State and the
law operate at this interface will have important consequences for people
whose physical impairment limits their capacity for independent action.
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The concepts of negative and positive freedom are well known and have
been extended to form the conceptual basis of debates about political and
civil rights on the one hand and social and economic rights on the other.
Berlin,I9 whilst claiming no originality in making the distinction, sets out to
clarify the difference between negative and positive freedom. Accepting that
they may be logically at no great distance from one another, Berlin asserts
nonetheless, that their conceptually divergent development is likely to
promote an inherent conflict. He describes negative freedom as that area
in which individuals are at liberty to act, without being obstructed or
constrained by others:
If
I
am prevented by others from doing what
1
could otherwise do,
I
am to that degree
unfree; and if this area is contracted by other men beyond
a
certain minimum,
I
can be
described as coerced, or,
it
may be, enslaved.20
An inability to act, which does not result from deliberate interference by
others, does not constitute a lack of negative freedom. Berlin’s notion of
positive freedom concerns the
source
of choices and actions and refers,
centrally, to an individual’s capacity for self-direction. He conceives of
positive freedom thus:
I
wish my life and decisions to depend
on
myself, not on external forces of whatever kind.
I
wish to be the instrument of my
own,
not of other men’s, acts of will.
I
wish to
be
a
subject, not an object: to be moved by reasons, by conscious
purposes
which are my own,
not by causes which affect me,
as
it were, from outside.
I
wish to
be
somebody, not nobody;
a
doer
-
deciding not being decided for, selfdirected and not acted upon by external nature
or
by other men as if
I
were
a
thing,
or
an animal,
or
a slave incapable
of
playing
a
human
role, that is,
of
conceiving goals and policies of my own and realizing them.]’
Negative and positive freedom are mutually re-inforcing in
so
far as individ-
uals are allowed to determine their own choices and goals, and to act upon
them within a wide area of discretion unobstructed by the intervention of
others. Conflict may occur on those occasions when it is acknowledged that
coercion is required for an individual’s own good, for example, in pursuit
of policy objectives such as justice or public health, which may arguably
enhance opportunities for positive freedom. However, what is clearly unac-
ceptable in Berlin’s view, is that ‘sleight of hand’ which equates coercion
with freedom, on the pretence that resulting action expresses the motivation
of an individual’s ‘true’
or
‘real’ self, despite their outward resistance.
Autonomy in this sense reflects an essential relationship between self-
determined choices and a wide degree of freedom
in
which to act upon them.
Discussions about the nature of autonomy have a long and distinguished
history,22 including Kant’s23 insistence on rational agency and the categorical
imperative, Hume’s contentionZ4 that autonomy is as much informed by
sentiments as by reason, Mill’sz5 centrally influential notion of active theo-
retical rationality, and a whole host of analytical accounts which explore
the relationship between freedom, justice, morality, and social regulation.26
For the purpose of this paper it is necessary to simplify this enormous
richness and complexity and to focus on the way in which autonomy has
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been employed in the ongoing debate about social policy and the provision
of welfare (for an elegant summary of this debate, see Plant and Barry2’).
Our starting point must be the relationship between liberalism as a doctrine
about political morality, individualism as a moral doctrine,28 and liberal
economics which is reflected in the ideological pragmatism of the New
Right.2g This relationship, and its ideological application, emphasizes citizen-
ship as essentially defined in terms of negative freedom. Barry summarizes
the significance of freedom in this context:
But even this concept (freedom) is understood in the traditional negative sense in which
a
person’s liberty is the function of the absence of (alterable) coercive laws. It is the
strait-jacket imposed by the prohibition on inter-personal comparisons of individual
utilities (which a science
of
welfare requires) that
rules
out an ethics of redistribution.
The rationale for extra-market payments to the needy depends on the existence
of
sentiments in a community. In a liberal political economy, a welfare society is defined
by the combination
of
market efficiency
. .
.
and benevolencem
Thus, autonomy in liberal political arrangements and in a liberal market
economy, depends on minimal State intervention, both in everyday regula-
tion of social life and in regulation of the market. An individual is the best
arbiter of his or her own well-being which is maximized through free and
voluntary engagement in market choices. Any unnecessary regulation of
social life diminishes that space in which an individual may exercise negative
freedom. Once the State begins to respond to the supposed needs of its citi-
zens, rather than allowing them to pursue their wants freely, it must confront
the ethical and practical difficulties of an equitable re-distribution of
resources and answer the challenge that State intervention actually increases
relative disadvantage.” State intervention in the market is generally criticized
on the grounds that is distorts the complex interplay of market forces, is
based on a spurious belief that centralized planning can be effective, and
reduces an individual’s freedom to exercise choice in the market place.32
The liberal approach
to
autonomy has been challenged on a number of
grounds, most centrally that a liberal’s insistence on protecting freedom is
vitally premised upon the importance of allowing individuals to exercise self-
determination in making choices and pursuing their own goals. The liberal’s
rejection of any link between freedom and ability is unsustainable
if
negative
freedom is to be of any value at all. Plant33 argues that autonomy not only
requires negative freedom, but positive freedom in the sense of ensuring that
individuals have the necessary resources to shape their own lives, and he
persuasively dismantles liberal objections to the difficulties inherent
in
extending citizenship to include positive entitlements to resources on the
basis of need. He comments:
Civil and political rights essentially codify a set of negative liberties; social rights,
however, seem to trade
on
an idea
of
positive freedom
-
to be able to
do
certain things
for which health, education and income are necessary. Social rights therefore seem to
link the idea of freedom and ability, implying that being free to do something is the
same as being able to do
it
and therefore having the appropriate resources to do it. If
we have a right to liberty then we have a right to those resources which bear directly
on
our
capacity for agency and
our
ability
to
act freely.”
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Plant is joined by Doyal and Gough3’ in developing an analysis of the
relationship between human needs and welfare policy. Building on Kant’s36
approach to human beings as constituting ends in themselves, Doyal and
Gough argue that physical health and autonomy must constitute universal
human needs since these preconditions are essential for individuals, through
participation in social life, to express agency and to build a self-conception
which reflects their capacity to make choices and to act effectively in shaping
goals and the quality of their lives. Autonomy here is characterized by three
key
variables. First, an individual’s understanding of self, culture, and social
expectations. Second, cognitive and emotional capacity as an indication of
mental health. Third, the range of opportunities which are available for initi-
ating choice and action in significant areas of social participation. At the
very least this must involve freedom of agency and, at higher levels of auton-
omy, will include the political freedom to influence institutional arrange-
ments and the rules which govern political and cultural life. As Doyal and
Gough point out, autonomy requires much more than negative freedom.
Physical health and autonomy depend on positive freedom which is provided
by material, educational and emotional need satisfaction. In order to meet
human needs, welfare policy must therefore provide a minimum level of
health care and education which enables individual determination of projects
and the personal capacity to achieve these.
Weale37 comes at the discussion about social and welfare rights from a
slightly different, but related perspective. He argues that political theory can
only be valid if it is premised upon the autonomy of individuals who are
‘capable of planning and deliberation concerning their actions and projects’,
(p.
45).
Autonomy comprises two elements; the ability to identify projects
within the constraints imposed by social regulation (negative freedom) and
the ability to act in order to further the completion of such projects (positive
freedom). Whilst the ability to execute decisions, intentions, and plans does
not require absolute equality between people, it does require a sufficiently
equitable distribution of resources to avoid coercion and exploitation of
relatively vulnerable individuals. Sen3” shifts the analysis of welfare policy
and positive freedom from a concern with the equal distribution of resources
to an emphasis on equality, arguing that an increase in resources is not
directly linked to greater positive freedom. Individual circumstances which
include personal needs, impediments to action, aspirations, and current
emotional, physical, and financial resources, suggest that positive freedom
is maximized by enhancing
equality
of
cupbility
rather than by simply
increasing the amount and coverage of welfare provision. Equality of capa-
bility, as a political value, means providing appropriate resources differ-
entially
so
that individuals can exercise freedom
of
choice over alternative
projects. It is the ability to choose and to achieve life plans which constitutes
positive freedom. In debating what kind of normative basis should inform
social policy, Bickenbach says of Sen’s approach:
Moreover, capabilities solve the problem
of
‘equality
of
what?’ since they complete the
rationale
for
equality, as a political ideal, a legal value, and
a
normative basis
for
social
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policy
. . .
Interpreting the principles of antidiscrimination and equality of opportunity
in terms
of
capability, we can
see
how they share
a
single underlying rationale, namely,
furthering the goal of positive freedom for
all.'9
Influenced by philosophical conceptions of individuals as creative, think-
ing actors and moral agents, Lewisa argues for the importance of choice as
characterizing autonomous action. The maximization of choice requires
social and economic entitlements
to
be addressed alongside citizens' rights
in
the political and civil sphere. It is Lewis's contention that a much extended
and more proactive role for a constitutional legal framework would signif-
icantly protect the positive freedom
of
citizens. Raz,'" in a careful analysis
of the liberal foundations of autonomy, describes his position thus:
There is more
one
can
do to help another
person
have an autonomous life than stand
off and refrain from coercing
or
manipulating him. There are two further categories of
autonomy-based duties towards another
person.
One
is to help in creating the inner
capacities required for the conduct of an autonomous life. Some of these concern cogni-
tive capacities, such
as
the power
to
absorb, remember and
use
information, reasoning
and abilities and the like. Others concern
one's
emotional and imaginative make-up. Still
others concern health, and physical abilities and skills.
He concludes that the duties of government to promote the autonomy of
its citizens provide a moral justification for intervention to ensure a redistri-
bution of resources and the provision of services. A perceived disaffection
with government has also prompted attention to ways of reaffirming the
value of political action in which citizen autonomy, in both its negative and
positive forms, holds a central position.42
The debate about the relationship between autonomy and social policy
does not require support for positive freedom at the expense of negative
freedom. Rather, the State is required to intervene
in
order to enhance
opportunities for positive freedom, whilst maintaining, as far as possible,
that space in which individuals may exercise choice without interference.
However, autonomy, to the extent that it is developed through positive
freedom, requires the recognition that incapacity
or
inability to pursue one's
goals constitutes a limitation of freedom. In
so
far as the State can exercise
remedial powers, then it should do
so,
in
order to minimize such limitations
on the autonomy of its citizens.
DISABILITY AND AUTONOMY: STATE INTERVENTION AND
THE LAW
Current policy underpinning the NHS and Community Care Act
1990
aims
to enable people to live in the community for as long as they wish, and are
able, to do Guidance accompanying the implementation of the Act
is
awesome
in
its references to citizenship, empowerment, choice, partnership,
and many similar imperatives, which are designed to enable service users
and their informal carers to benefit from the philosophy of community care.
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The Department of Healthu refers to a growing consensus about those values
which inform policy and practice in community care, and which include:
(i) a commitment to ensure that all users and carers enjoy the same
rights
of
citizenship
as everyone else in the community, offering an equal
access to service provision, irrespective of gender, race
or
disability;
(ii) a respect for the
independence
of individuals and their right to self-
determination and to take risks, minimizing any restraint upon that
freedom of action;
(iii) a responsibility to provide services in a way that promotes the
realization of an
individual's aspirations and abilities
in all aspects
of daily life.
Such values clearly underpin both negative and positive freedom which
are necessary for the recipients of community care to achieve autonomy in
their everyday lives. However, not only have the courts been asked to inter-
vene, by way of judicial review, to ensure that a shortage
of
resources does
not deprive individuals of assessment and but, more fundamen-
tally, it is asserted that professional intervention and service provision
actually serve to erode autonomy and to maintain dependency.& This view
challenges current policy for employing the language of citizenship and rights
whilst, at the same time, making services contingent upon professional and
discretionary assessment of personal needs for help with everyday living.
Campaigning for legislation to provide disabled people with equal rights to
education, employment, mobility, and access, Bynoe et
al.
summarize the
situation as follows:
As
we have argued, professionalised service provision
in
a
needs based system of welfare
has amplified existing forms
of
discrimination and created new ones: these include the
stigma
of
segregated services such as day care, professional assessments and practices
based
on
invasion of privacy, and
a
language
of
paternalism which
can
only enhance
discriminatory attitudes."
What is required to enhance the autonomy of people with an impairment,
argue supporters
of
the 'independent living movement', is not welfare, but
choice and control. The liberal approach to choice through the market does
not, however, take matters far enough. Although the Community Care
(Direct Payments) Act 1996 allows local authorities to make cash payments
to service users,
so
that they may commission services of their own choosing,
it has been suggested that far-reaching changes are required in order to
significantly improve opportunities for choice over
what
is provided and
control over
how
it is provided. Oliver contends4* that autonomy demands
a much more powerful voice for individuals in shaping social policy and
determining the nature of services which will enhance positive freedom. In
this context he called for anti-discrimination legislation which is now finally
on its way to implementation in the form of the Disability Discrimination
Act 1995. The Act, however, has attracted criticism, notably because it
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allows a long period over which premises must be made accessible, its
employment requirements relate only to those companies employing more
than twenty people, and unlike other legislation proscribing discrimination
on the basis of gender
or
race, individuals may only seek redress for a breach
of the law by way of personal application to court. There is no provision
in the Act for a commission to take legal action against those breaking the
law and the only safeguard is in the form of an advisory council with a brief
to monitor the Act's implementation and to make representations. Although
the preceding White Pa~ef'~ and the Act itself clearly recognize and respond
to disabling features of the environment such as physical barriers, lack
of
awareness, and prejudice, ChadwickSo argues that they remain premised
upon a discourse which closely associates personal impairment and disabil-
ity. The Act reflects an individual model of disability and thus fails to
challenge the governances1 of disabled people by government departments,
medical professionals, welfare practitioners, the family, and the mass media,
which derives from particular knowledge and power relations. Arguing that
the Disability Discrimination Bill (now an Act) would be implemented
without the support of many disabled people, Chadwick says:
It
is my contention that if the Act is implemented with its individual model of disability
unchallenged disabled people could remain figures of intrinsic limitation and restriction;
and this negative perception will itself limit
or
further restrict attempts to achieve equality
in any meaningful sense. Implementation will, therefore, require an understanding of
the complex relationship between individuals with impairments, the social context in
which disability occurs and the meanings
of
disability available to policy officers.s2
If we accept the validity of these arguments, then the autonomy of people
with an impairment is not simply compromised because they may need assis-
tance with everyday living, but is fundamentally limited by a lack of choice
and control in relation to many features of their personal and social environ-
ment. They may enjoy negative freedom to the extent that it is enjoyed by
other citizens, but their experience of positive freedom remains a legislative
promise undermined by a particular discourse of disability. The demand that
people with an impairment should be given, and should assume, greater
power in determining the nature of knowledge about disability and its
governance, is reminiscent of renewed arguments about the relationship
between autonomy and citizen participation in framing policy and legisla-
ti~n.~~ A concern with the autonomy needs
of
citizens has shifted the
emphasis from positive freedom through welfare provision, to positive
freedom through political power.%
DISABILITY AND AUTONOMY: THE STATE, THE LAW, AND
THE FAMILY
I have canvassed arguments that people with an impairment are disabled by
a particular discourse of disability which informs policy and legislation in
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the public domain. Additionally, Steven’s case in the Court
of
Appeal throws
into sharp focus the way in which the autonomy of individuals with a
physical impairment may be restricted by community care, particularly when
this relies upon care in the private domain
of
the family. Here, autonomy
is potentially a hostage to the coalition of interests between the State, a New
Right ideology, and the family. There are two major threads to this discus-
sion. First, the way in which the New Right’s liberal emphasis on negative
freedom and personal responsibility, combines with the State’s monitoring
and normalizing gaze55 to resist direct intervention in the private lives of
citizens. In the public sphere of child welfare, the State will only intervene
to override parental responsibility in circumstances which require the protec-
tion
of
children from significant harm, (Children Act 1989,
ss.
31 and
44).
At the fringes of social definition, over-protective care of a dependent child
or
adult may not be construed as abusive, not least because we generally
believe in its benevolent intentions. Thus, following Steven’s case in the
Court of Appeal, the
Times
coverage was headlined: ‘Devoted Mother Wins
Fight to Care for Disabled Son’
(3
February 1996) and the
Independent
proclaimed, ‘Jail Threat to Over-protective Mother Lifted’ (3 February
1996). Indeed, Sir Stephen Brown echoed this sentiment when he commented
in Steven’s case:
Nobody has suggested in this case that there is any question of ill treatment
or
neglect
in a colloquial sense. This, if
I
may
say
so,
is a case where the devotion of the mother
has been
so
intense that it has not been found possible in the past to
look
after
S’s
development in the way which it was thought appropriate and which could be helped
by this School.s6
It is only relatively recently that we have confronted the possibility of
familial abuse towards older dependent members and been challenged by
the issues which this raises
for
the role of the State in providing adequate
prote~tion.~~ Similarly, Meeham notes that a liberal concern with achieving
equality through
public
policy neglects those areas where inequality is expe-
rienced in the private domain:
By emphasising that the proper concern about equality is in its public manifestation,
and believing, therefore, that
‘all
legitimate democratic aspirations’ have been met,
liberals often overlook the fact that continuing differences in the private sphere effec-
tively undermine women’s formal civil and political status. And this is compounded
by New Right endeavours to return responsibility for need from the public sector to
the private realm.s8
State intervention by way of policy implementation and legislative action
thus centres on the public domain and, where it does intrude upon the roles,
responsibilities, and relationships
of
family members, it does
so
warily with
an eye to minimal interference.
Second, the ideology of minimal intervention readily engages with the
implementation
of
community care in a joint approach to managing the
distribution of scarce resources. Taylor Gooby captures the tenor of this
relationship when he comments:
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The Conservative approach is well summarised in the passage in the
1987
election
manifesto which defined commitment to the family in terms of extending people’s
freedom
of
choice about ‘what they do
for
themselves,
for
their families and
for
others
less fortunate’ by reducing the role of an ‘over-powerful State’. In practice this has meant
a
reduction in state provision and an assumption that families, and very often women
in them, will bear the resulting burden.s9
Twigg and Atkin” have also explored this theme, pointing out that New
Right ideas and mounting anticipation of a fiscal crisis combine nicely to
promote the family and informal care as an alternative source of help for
older and disabled people. Of course, realistic concerns about the level of
welfare spending, which gathered momentum during the late 1970s and
1980s, cannot be attributed entirely to the emergence of a New Right passion
for redrawing the boundaries of State intervention.61 However, combined
with an ideology which promotes negative freedom and personal respon-
sibility, it pointed to a retrenchment in the State’s willingness to resource
and guarantee welfare provision.62 An intention to develop community care
had also been recumbent since at least the
1960~~~
The point is, however,
that the historical availability of informal care, largely involving women,M
a radical re-thinking of the State’s moral obligation to resource welfare, and
a renewed impetus towards community care, all contrived to place the family
at centre stage. There was little alternative but for the government to
acknowledge this situation and to cast it in a favourable light:
The Government acknowledges that the great bulk
of
community care is provided by
friends, family and neighbours. The decision to take on a caring role
is
never an easy
one. However, many people make that choice and it
is
right that they should be able to
play their part in looking after those close to them!’
Thus, much of the research on community care has taken the role
of
informal carers for granted, and has focused on the difficulties and pressure
which they experience and their need for support and services in their own
right.& Carers’ advocacy groups and notably, the Carers’ National
Association, have adopted a similar per~pective.~’ Indeed the Carers’
(Recognition and Services) Act 1995, promotes carers as having a central
role in welfare provision and responds to their perceived need for assessment
and services. These comments are not intended to belie the commitment
or
legitimate need for support expressed by informal carers, but to indicate
that the problematic nature of caring has been defined in terms
of
how best
to strengthen this role, rather than attempting to deconstruct its meaning
for
the State, carers, and those in receipt of care. However, as Morris force-
fully argues, this approach confirms a social definition of service users as
dependent and passive recipients of care. She notes:
In the context
of
the economic inequality which accompanies significant physical
impairment in industrialised societies, the need
for
personal assistance has been translated
into a need
for
‘care’ in the sense
of
a
need to be looked after. Once personal assistance
is seen as ‘care’ then the ‘carer’, whether professional
or
a relative, becomes the person
in charge, the person in control.68
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The discourse of caring confers a particular status on those who are cared
for;
it
renders them dependent on the benevolent services of their carers.
This social construction, and the unequal relationships which
it
supports,
have been challenged. As I have noted earlier, the ‘independent living move-
ment’ seeks to demolish this construction by arguing that independence
requires the ability to make choices and the resources to implement these.
Brisenden reflects this perspective clearly:
The point is that independent people have control over their lives, not that they perform
every task themselves. Independence is not linked
to
the physical
or
intellectual capacity
to
care
for oneself without assistance, independence is created by having assistance when
and how one requires it.69
Thus, it may be suggested that those factors which limit autonomy in the
public domain are reflected in the private domain of the family, where indi-
viduals like Steven, who lack the physical capacity to take independent
action, may be powerless to pursue their own goals. Although positive free-
dom generally requires material resources, the issue here relates to State
intervention in the family to both ensure an individual’s negative freedom
and to require that carers make an active response to enhancing positive
freedom. In Steven’s situation, autonomy necessitates that his parents both
refrain from interfering with his choices and provide him with positive assis-
tance to carry them out.
CONCLUSION: DISABLING AUTONOMY
Whilst is must be acknowledged that negative freedom is vitally important
to autonomous action, it primarily safeguards the civil and political rights
of citizens.
I
have attempted to show how those who insist on the significance
of positive freedom for meeting autonomy needs have emphasized social and
economic rights, and particularly with regard to disability, the imperative of
political power as a means to self-determination. Steven’s case highlights
how the State, by implementing policy in the public domain, informs the
role of the family in caring for its members, but withdraws from interven-
tion to ensure that such care maximizes an individual’s autonomy needs.
Leaving aside anxieties about State intervention beyond that which is neces-
sary to guarantee negative freedom and a basic level of welfare,70 it is
evidently the case that intervention in family life is fraught with difficulties;
when does persuasion or a discussion about risk become unacceptable inter-
ference, and when does over-protectiveness become abuse?
Others have commented on the way in which the law ‘thinks’ about chil-
dren7’ and how, when considering their capacity to decide in their own best
interests, courts have tended to reflect their dependent status and relative
powerlessness in family relations.72 When confronted with Steven’s situation,
the Court of Appeal, while accepting that he had the capacity to decide in
his own best interests, expressed an unwillingness to intervene to ensure that
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he was able to do
so.
In effect, mental incapacity in children,
by
definition,
and in adults, by diagnosis, may produce similar consequences as it does
for those with the physical incapacity to take independent action. All may
be rendered relatively powerless, dependent, and restricted in opportunities
to enjoy both negative and positive freedom. This is not to deny that these
groups of individuals need care in varying degrees, but to recognize that
care both responds to and, in itself, may reinforce a dependent status. There
is, of course, no simple solution to this dilemma, but Steven’s case, drawing
attention as it must, to all those people without the physical capacity to
protect their own autonomy, at least demands attention from those who
initiate, implement, and interpret policy imperatives. The alternative is that
State intervention in the public domain, and an avoidance
of
State inter-
vention in the private domain, will continue to compromise the autonomy
of those who do not have the resources to protect it for themselves. Steven’s
attempt to seek the court’s protection drew this comment from Waite
LJ
in
the Court of Appeal:
There was
no
issue immediately affecting
S’s
legal rights which might arguably have
given the judge jurisdiction to grant the order he made. While the evidence might have
justified anxiety about the future,
it
came nowhere near establishing any threat
to
his
legal rights as a citizen, and as an adult with full mental capacity.”
Here, the court appears to be construing Steven’s rights in terms of negative
freedom. The Court of Appeal’s judgment provides an illuminating illustra-
tion of juridical limitations to intervening in complex, sensitive, and shifting
family relationships. It also bears upon a critique which suggests that the
law is essentially unable to respond to problems which fall beyond its
juridical discourse, because it is constrained by its own formality, quest for
certainty, and self-referential ~haracter.’~ An engagement between New
Right ideology, community care as social policy, and constraints upon
judicial intervention in the private domain of the family thus represent a
hegemony of interests which has significant implications for individuals
whose autonomy needs are subject to public policy in the context of
community care.
NOTES AND REFERENCES
1
Law Commission,
Consent
in
the Criminul
Law:
A
Consultation
Puper
(1995).
2 For an explanation
of
statutory exceptions, see P. Alderson and
J.
Montgomery,
Health
Cure Choices:
Muking
Decisions
with
Children
(1996).
3
Gillick
v.
West Norfolk
und
Wishech Health Authority
and
Another
[I9851
3
All
E.R. 402 H.L.
4 See
G.
Douglas, ‘The Retreat from Gillick’ (1992)
55
Modern
LUIV
Rev.
569;
J.
Eekelaar,
‘White Coats
or
Flak Jackets? Doctors, Children and the Courts Again’ (1993)
109
Law
Q.
Rev.
189;
G.
Lansdown, ‘Children’s Rights’ in
Children’s Childhoods Observed
and
E,Kperienced,
ed.
B.
Mayall (1994)
33;
D.
Dickenson, ‘Children’s Informed Consent
to
Treatment
-
Is
the Law an Ass?’ (1994) 20
Medical Ethics
205;
C. Lyon and
N.
Parton,
‘Children’s Rights and the Children Act 1989’
in
The Handbook
of
Children’s Rights,
ed.
436
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5
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
21
28
29
30
31
32
33
34
B. Franklin
(1995);
D. Dickenson and D. Jones, ‘True Wishes: The Philosophy and
Developmental Psychology of Children’s Informed Consent’
(1995) 2
Philosophy,
Psychiatry and Psychology
287.
For a detailed discussion of children’s competence to make decisions in their own best
interests see Franklin, op. cit.,
n.
4;
D.
Archard.
Children’s Rights and Childhood
(1993);
Landsdown, op. cit., n.
4.
Re W.
(A
Minor) (Consent
to
Medical Treatment)
(19931
1
F.L.R.
I,
at
13.
Re C. (Refusal
of
Medical Treatment)
[I9941
1
F.L.R.
31,
at
35.
Re F. (Sterilisation: Mental Patient)
[
19901 2
A.C.
I.
id., at p.
53.
See Law Commission,
Report
on
Mental Incapacity
(1995).
P. Fennel], ‘The Law Commission Proposals on Mental Incapacity’
(1995) 25
Family Law
420.
S.
Hunter and B. White, ‘At Risk in the Community’ in
Community Care in Practice,
ed.
R. Davidson and
S.
Hunter
(1994) 25.
See
Re
V.
(Declaration Against Parents)
[I9951 2
F.L.R.
1003
for the judgment of this case
in the High Court. The judgement in the Court of Appeal was reported in the
Times,
Independent,
and
Guardian,
3
February
1996.
A full transcript of the Court of Appeal’s
judgement may be obtained from John Larking, Chancery House, Chancery Lane, London,
WC2 (official shorthand writers to the Court) as
Re
V.
(A
Minor)
2
February
1996.
See the judgement in
Malone
v.
Metropolitan Police Commissioner
(19921
Ch.
344
for
a
discussion
of
legal rights.
Re
V.,
op. cit., n.
13,
at p.
1009.
id., at pp.
12-13.
id., at p.
15.
id.
I.
Berlin, ‘Two Concepts of Liberty’ in
Political Philosophy,
ed. A. Quinton
(1967) 141.
id., p.
142.
id., p.
149.
For a thorough and critical discussion about the nature of autonomy see
R.
Lindley,
Autonomy
(1986).
E.
Kant,
Foundutions
in
the Metuphysics of Morals
(1959).
D. Hume,
A
Treatise
on
Human Nature
(1968).
J.S.
Mill,
Utiliturianism, On Liberty and Considerations
on
Representative Government
(I
972).
See, for example, H.L.A. Hart, ‘Are there any Natural Rights? in
Political Philosophy,
ed. A. Quinton
(1967) 53;
J. Rawls,
A
Theory
of
Justice
(1972);
J. Raz,
The Morality
o/
Freedom
(1986);
R. Plant,
Modern Political Thought
(1991);
N. Lewis,
Choice and the Legal
Order
(1996);
V.
George and P. Wilding,
Werfare und Ideology
(1994).
R. Plant and N. Barry,
Citizenship and Rights in Thatcher’s Britain: Two Views
(1990).
Individualism as a moral doctrine follows the conceptualization employed by Raz, op. cit.,
n.
26.
See B. Hindess,
Freedom, Equality and the Market
(1987)
for a discussion of liberal
economics.
N. Barry,
Werfure
(1990) 69.
See id. for an analysis of how State intervention may increase the relative social and
economic disadvantage of citizens.
F.
A. Hayek,
The Constitution
of
Liberty
(1960);
M. Friedman and
M.
Friedman,
Free
to
Choose
(1980).
R. Plant, ‘The Very Idea of a Welfare State’ in
In
Defence
of
Weyure,
ed. P. Bean et al.
(1985) 3.
See, also, the arguments in Plant and Barry, op. cit., n.
27.
R. Plant, ‘Citizenship, Rights and Welfare’ in
The Werfare
of
Citizens,
ed. A. Coote
(1992)
15,
at
19.
437
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Lld
1997
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
51
L.
Doyal and
I.
Gough provide an introduction to their thinking on this topic
in
‘A Theory
of Human Need’
(1984)
Critical Social Policy
6,
but develop a detailed analysis of universal
human needs and mechanisms for need satisfaction
in
A Theory ofHuman Need
(1991).
Kant, op. cit., n.
23.
A. Weale,
Political Theory and Social Weljhre
(1983).
A. Sen has developed this work in
a
number of publications, but see, particularly, ‘Equality
of What?
in
The Tanner Lecture on Human Values,
ed.
S.
McMurrin
(1980);
Choice Welfare
and Measurement
(1982);
‘Justice: Means v Freedoms’
(1990) 19
Philosophy and Public
Affairs
I I
1-2
I.
J.E.
Bickenbath,
Physical Disability and Social Policy
(1993) 267.
Lewis, op. cit., n.
26.
Raz, op. cit., n.
26,
p.
267.
See, for example, D. Miliband (ed.)
Reinventing the
Leji
(1994).
Department of Health,
Community Care in the Next Decade and Beyond
(1990).
Department of Health,
Care Management and Assessment: Summary of Practice Guidance
(1991) 21,
original emphasis.
The following authors provide a good overview of the use of judicial review and the impact
of judgements on policy and practice in community care:
M.
Chester, ‘Bound to Comply’
Community Care,
12-18
December
1996,
30;
L. Clements,
Community Care and the Law
(1996);
S.
Cragg, ‘Community Care Update’
Legal Action,
September
1996, 16;
M. Preston
Shoot, ‘Contesting the Contradictions: Needs, Resources and Community Care Decisions’
(1996) 18
J.
of Social Weyare and Family Law
307.
This contention is fully explored by M. Oliver in ‘The Politics of Disability’
(1984)
I1
Critical Social Policy
21-32
and
The Politics ofDisablement
(1990)
and further argued by
J.
Morris,
Independent Lives
(1993)
and ‘Community Care
or
Independent Living’
(1994)
14
Critical Social Policy
24.
I.
Bynoe et al.,
Equal Rights for Disabled People
(1990)
14.
See Oliver, op. cit.
(1990),
n.
46,
p.
99.
Department of Social Security,
A Consultation on Government Measures to Tackle
Discrimination Against Disabled People
(1
994).
A. Chadwick, ‘Knowledge, Power and the Disability Discrimination
Bill’
(1996)
I1
Disability and Society
25.
The term ‘governance’ refers to a Foucauldian analysis of the way in which people are
governed at a distance through the defining activities and surveillance of professional
experts and the power relations which are inherent in particular discourses,
in
this
case
the discourse of disability. For a detailed discussion of Foucault’s conception of governance
and power relations see M. Foucault,
Discipline and Punish
(1977);
M. Foucault, ‘The
Subject and Power’ in
Michael Foucault: Beyond Stucturalism and Hermeneutics,
ed. H.
Dreyfus and P. Rainbow
(1982);
A Hunt and
G.
Wickham,
Foucault and Law: Towards
a Sociology of Law and Governance
(1994).
Chadwick, op. cit., n.
50,
p.
25.
For a discussion of citizen participation in government see A. Giddens, ‘Brave New World:
The New Context of Politics’ in Miliband, op. cit., n.
42,
p.
21;
G.
Brown, ‘The Politics
of Potential:
A
New Agenda for
Labour,’
id., p.
113;
Lewis, op. cit., n.
26.
This point is centrally argued by
D.
Held, ‘Inequalities of Power, Problems of Democracy’
in
Miliband, id., p.
47.
This picks up the Faucauldian idea of ‘government at
a
distance’ which
is
more pervasive
but less overtly intrusive than direct State intervention through legislative action. For a
discussion of Foucault’s contribution to an understanding of the State’s role
in
child
protection, see
N.
Parton,
Governing the Family
(1991).
Re V.,
op. cit., n.
13,
at p.
4.
See, for example, Department of Health,
No Longer Afraid: the Safeguardof Older People
in Domestic Settings
(1993);
Social Work in
Europe,
Special Edition on Elder Abuse
(1995)
2;
L.A. Baumhover and
S.
C. Beal,
Abuse, Neglect and Exploitation of Older Persons
(1996).
43
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58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
E. Meehan, ‘Equality, Difference and Democracy’ in Miliband, op. cit., n.
42,
p.
69.
P. Taylor-Gooby,
Social Change, Social Welfare and Social Science
(1991) 149.
J.
Twigg and
K.
Atkin,
Carers Perceived
(1994).
See
A.
Cochrane,
‘A
Crisis in Care: Challenges from the Centre’ in
A Crisis
in
Care,
ed.
J.
Clarke
(1993).
For
a
discussion of political and resource issues associated with State provision of welfare,
see
M. McCarthy,
The New Politics of Welfare: An Agenda for the 1990s
(1989),
and P.
Wilding, ‘The British Welfare State: Thatcherism’s Enduring Legacy’
(1992) 20
Policy and
Politics
201.
The Griffith report explored and recommended the provision of services in the context of
maintaining people within the community for as long as it was in their best interests to
do
so
and through the effective
use
of
community resources.
See
R.
Griffith,
Community
Care: Agenda for Action
(1988).
See
J.
Finch and D. Groves, ‘Community Care and the Family: A Case
for
Equal
Opportunities’
(1980) 9
J.
of Social Policy
487,
and
A Labour of Love: Women, Work and
Caring
(1983).
Department of Health,
Caring for Older People: Community Care in the Next Decade and
Beyond
(1989)
para.
1.9.
J.
Twigg,
Carers: Research and Practice
(1992);
D. Robbins,
Community Care: Findings
from Department
of
Health Funded Research, 1988-1992
(1993);
Twigg and Atkin, op.
cit.,
n.
60.
See research carried out for the Carers’ National Association by N. Warner,
Better
Tomorrows: Report
of
a National Study of Carers and the Community Care Changes
(1995).
J.
Morns,
Independent Lives
(1993) 23.
S.
Brisenden, ‘A Charter for Personal Care’
(1989)
16
Progress
9.
Such anxieties about the ineffectiveness
of
State intervention beyond
a
minimally necessary
level and the potential danger
to
negative freedom
of
a paternalistic State have been
expressed by F.A. Hayek,
The Constitution ofLiberty
(1960);
C. Murray,
Small Government
and the Pursuit of Happiness
(1988);
R. Nozick,
Anarchy, State and Utopia
(1974).
See, for example, M. King and C. Piper,
How the Law thinks about Children
(1995)
for a
discussion of legal discourse and its relation to other discourses, for example, the psycho-
logical discourse of an expert witness. The debate about whether
or
not the law ‘thinks’
in any distinctive and coherent way relates to autopoiesis theory and is associated
particularly with P. Bordieu,
‘The
Force of Law: Toward a Sociology of the Juridical
Field’
(1987) 38
Hustings Law
J.
805;
G.
Teubner,
Autopoietic Law: A New Approach to
Law and Society
(1988);
G.
Teubner, ‘How the Law Thinks: Toward
a
Constructivist
Epistemology
of
Law’
(1989) 23
Law and Society Rev.
727.
A helpful discussion of
autopoiesis theory can
be
found in R. Cotterrell,
The Sociology of Law
(1992),
particularly
ch.
2.
See C. Sawyer, ‘The Competence
of
Children to Participate in Family Proceedings’
(1995)
Child and Family Law Q.
180.
Re
V.,
op. cit., n.
13,
at p.
16.
This refers to the particular approach of autopoiesis theory introduced in n.
71.
439
0
Blackwell
Publishen
Ltd
1997
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