RELATIONAL AUTONOMY, VULNERABILITY THEORY, OLDER ADULTS AND THE LAW: MAKING IT REAL.

• Date: 01 January 2019
• Author: Hall, Margaret Isabel

1. INTRODUCTION

   Truth happens to an idea, it becomes true, it is made true by events. Its verity is in fact an event, a process: the process namely of its verifying itself, its-verification. (1)

   The papers in this special issue of the Elder Law Review consider different aspects of and approaches to the concepts of vulnerability and autonomy within areas of the law with particular relevance to the experience of older adults. The words 'vulnerability' and 'autonomy' have no essentialist meaning, as reflected in the diverse contributions to this issue. There is no right or wrong way to talk about either idea, although some approaches are more useful than others in terms of the basis they provide for social and legal action.

   The traditional meanings of autonomy and vulnerability in law (autonomy as liberty and the location of vulnerability in 'vulnerable populations') have become so fused with existing legal rules and structures that it is difficult now to see them for what they are: provisional versions or accounts of what it means to be vulnerable, and to be a person in possession of autonomy. The 'making it real' theme of this special issue of the Elder Law Review addresses the challenge of making new theoretical frameworks "real" within and through legal rules and structures in light of these taken-for-granted accounts.

   The idea of autonomy as self-direction without external interference was described by the Supreme Court of Canada as the "basic theory underlying the [Canadian Charter of Rights and Freedoms], namely that the State will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating those choices to any one conception of the good life." (2) Private actor interference with another person's autonomy (as opposed to State interference) is more complicated on the terms of this account; in theory, because an individual can choose to opt out of a relationship that interferes with her freedom, remaining within it can be characterised as that person's autonomous choice or 'conception of the good life.' Private law rules about testamentary freedom and freedom of contract are conceptually of a piece with this idea of autonomy as freedom from the interference of others. To the extent that private law recognises the impact of relationship context on the exercise of free decision-making, however, it provides a thicker and more nuanced account of what it means to be autonomous. That recognition is provided through the doctrines of equitable fraud: undue influence and unconscionability. Perhaps because of the split between law and equity, this thicker concept of autonomous decision-making has not had a significant impact on the traditional taken for granted meaning of autonomy in law: autonomy as negative freedom.

   Traditional accounts of vulnerability in the law are constructed around 'vulnerable persons' (as members of 'vulnerable populations') in opposition to a theoretically invulnerable norm. The specialness/apartness of vulnerable populations is understood as justifying interferences with self-direction that would otherwise be unacceptable. The vulnerability of children (and their difference from adults), for example, justifies rules that restrict children's freedom to act on the basis of their own choices. In this way, identification as a vulnerable population member is associated with disempowerment and paternalism; to be 'vulnerable' in this sense is to be perceived as lesser than. At the same time, vulnerability-identification can provide access to services and protection from harm (including harm by others) that is not otherwise available.

   These traditional accounts, while deeply embedded within the law, are not immutable. (3) As discussed in the following section, 'autonomy' and 'vulnerability' as concepts are broad and multifaceted in ways that include (but are not limited to) the traditional legal accounts described above. Different aspects of each broad concept may be more or less emphasised within a particular area of law, or within other organised social activities (health care and education e.g.). The fact that change in the way we understand autonomy is possible does not make it desirable in every case, however; the question of whether change is warranted depends on the extent to which current understandings of autonomy succeed or fail as the basis for rules and structures that actively facilitate just outcomes. Where an account of vulnerability and/or autonomy informs the law in ways that frustrate justice, and/or generate additional problems, that account must be re-examined and re-constructed if necessary. The law is both vast and various, and this kind of inquiry must be carried out on a case by case basis; it may be that particular accounts of autonomy and vulnerability work well in some contexts, less so in others.

   This introductory essay considers autonomy and vulnerability within two areas of law with particular relevance to older adults: advance planning and guardianship. I suggest that traditional legal accounts of autonomy and vulnerability are especially problematic in these contexts because of the relationship between dementia, diminished decision-making capacity and old age. Individuals who have been identified as incapable of making certain kinds of decisions are a de facto vulnerable population in law to the extent that interference with choice and action will be justified on the basis of that identification. The fact that interference is limited to specific decision-making domains (personal, financial, or health-care decisions e.g.), as opposed to a broader category of 'incapable persons', does not alter this conceptual framework. The relationship between dementia and old age (including both the physiology of old age and social ageism) makes it especially likely that a loss of decision-making ability will be identified in older adults, creating a special dynamic between old age, vulnerability and autonomy despite the fact that older adults are not identified as a 'vulnerable population' per se. To the extent that identification as a 'vulnerable person' changes autonomy-status within the traditional accounts described above, these accounts are problematic. To be identified as vulnerable can provide access to help that is essential to both psychological and physical wellbeing (and that may be desired) but that is not sought out and/or is rejected because the autonomy-cost of that identification is too high. Could alternative accounts of vulnerability and autonomy provide more workable/less problematic bases for responding to the needs of persons experiencing dementia in old age? If so, what would that look like?

   The first part of this essay examines the traditional accounts of autonomy and vulnerability set out in legal rules and doctrine, and the non-traditional theories of relational autonomy and vulnerability that have been articulated in contemporary legal theory. The second part of this essay sets out the author's own conceptual framework for understanding autonomy and vulnerability (drawing on the theoretical work discussed in the previous part) as potential bases for legal rules and structures. The third part of this essay considers how these new ways of thinking about vulnerability and autonomy can inform laws relating to advance planning and guardianship.

   II AUTONOMY, VULNERABILITY, AND THE LAW

   A Autonomy as Liberty and the Invulnerable Liberal Subject

   1 Autonomy

   The concept of 'autonomy' has no single, settled meaning beyond a general consensus that autonomy is a 'feature of persons' that is 'desirable to have': (4)

   It is used sometimes as an equivalent of liberty (positive or negative in Berlin's terminology), sometimes as equivalent to self-rule or sovereignty, sometimes as identical with freedom of the will. It is equated with dignity, integrity, individuality, independence, responsibility, and self-knowledge. It is identified with qualities of self-assertion, with critical reflection, with freedom from obligation, with absence of external causation, with knowledge of one's own interests. It is related to actions, to beliefs, to reasons for acting, to rules, to the will of other persons, to thoughts and to principles. (5) As described above, autonomy is a broad and multi-faceted virtue, different aspects of which may be more or less relevant and/or emphasised within different contexts. The individualist account of autonomy (autonomy as negative liberty) is one account or theory of autonomy and does not comprise 'autonomy' itself.

   The principle of autonomy in public law (concerning the relationship between the individual and the state) is synonymous with negative liberty and the 'political metaphor' of the sovereign self. (6) Martha Albertson Fineman has described '[s]elf-government ... [a]s the ideal [that] defines the individual subject of liberal political discourse': (7)

   Individual liberty interests are what are protected--autonomy entails being left alone to satisfy our own needs and provide for our own families without undue restraint. (8) The poorly ruled person may be substantively oppressed through the choices she or he makes (to remain in an abusive relationship or community e.g.), but 'like a badly governed nation, he may retain his sovereign independence nevertheless.' (9) Thus, the 'right knowingly to be foolish' is identified in public law as an important incident of autonomy, and a 'critical component of the right to liberty' protected by the Canadian Charter of Rights and Freedoms, s 7. (10)

   This liberal theory of autonomy is both descriptive (as a theory of human behaviour) and normatively prescriptive (identifying the protection of individual sovereignty as a core function of law). As a theory of human nature, each 'sovereign' individual exercises control over her or his person (including matters pertaining to the physical, psychological, and emotional self) through 'decision-making' i.e. a...