What about us? A case for legal recognition of interdependence in informal care relationships

Abstract

As the number of people being cared for by relatives and friends rises, it is vitally important to examine whether legal frameworks surrounding care and treatment sufficiently account for the realities of informal caring. This paper undertakes such an analysis through the lens of care ethics, arguing that relational and contextual aspects of caring ought to be brought further to the fore. The Mental Capacity Act 2005 forms the central focus of criticism and it is suggested that the legislation and case law surrounding best interests decisions fails to heed the interdependence which permeates informal caring. In contrast to earlier care theories, however, the importance of retaining a focus on the rights and capabilities of individuals within the web of caring relationships is emphasised.

Keywords::

• informal care
• care ethics
• Mental Capacity Act 2005
• best interests
• capabilities

Notes

^1. Traditionally, care ethicists such as Noddings (1984) and Held (1993) have positioned themselves in opposition to a theory of justice which sits in contrast to care – namely, one which is abstract and built upon boundaried rights. However, as will be discussed later, this does not require a rejection of justice or rights per se, but instead invites a re-evaluation of how we conceptualise justice (Engster, 2004; Spring, 2011). I take this view as the basis of my argument that care considerations can be aligned with considerations of social justice; an approach which allows for a much more responsive evaluation of current law and policy.

^2. The Care and Support Bill (Department of Health, 2012) proposes a duty on local authorities to assess the carers’ needs separately to the care-recipient, and furthermore a duty to meet this need. Whilst this is laudable in principle, it is not clear that the provisions are sufficiently nuanced to appreciate the interpersonal, relational needs of the carer and cared-for. In effect, the proposed reforms perpetuate an individualistic division between carer and cared-for. The procedural division of services can obstruct the process of attending to individual and interdependent needs and choices and act as an obstacle to nuanced consideration of the needs of the care relationship as a whole and to the inclusive negotiation of interests in decisions being made.

^3. The Code of Practice (2007) is not particularly helpful here as it similarly reflects the atomistic approach to best interests. See, for example, the discussion of Pedro at para 5.7. The scenario, provided in order to assist those using and applying the legislation, presents the respective interests in such an unsophisticated way that an appreciation of the complex relational factors inherent in caring relationships is side-stepped.

^4. Recognition of this, and advocating a justice dimension to care ethics, is antithetical to many early ethics of care theorists (Noddings, 1984; Ruddick, 1989). Early debates in the care ethics sphere were framed as viewing care and justice as dichotomous concepts, focusing in particular on rights as a masculine and atomistic concept. This unease with the place of rights within a care ethics framework still creeps into the literature (see Herring, 2007). Spring (2011) has explored the potential of an integrated view of care and social justice in order to bridge the apparent gap between the concepts. He builds upon Nedelsky's contention that ‘once rights are conceptualised in terms of the relationships they structure, the problem of individualism is at least radically transformed’ (Nedelsky, 2006, p. 101) and Brennan's suggestion that it is open to us to develop rights approaches based upon a relational view of the self (Brennan, 1999, p. 266). Rejection of an individualistic concept of the self and society does not necessitate a rejection of rights- we do not want to throw out the baby with the bathwater. As Pettersen describes, ‘no single ethical theory is all-inclusive, and illuminates why it is often necessary and beneficial to review ethical challenges from several normative perspectives before drawing conclusions, making decisions or passing judgment’ (Pettersen, 2011, p. 55).

^5. Also see Thorpe LJ guidance in Re A [2000] 1 FLR 549 which directed a balance sheet approach to best interests. Whilst taking into account a range of factors, the approach is still solely focused on the best interests of the individual. However, see the dicta of Morgan J in In the Matter of G (TJ) [2010] EWHC 3005 (COP) in which he stated that the balance sheet approach has the effect of ‘considerably widening the matters which fall to be considered’ (para. 36]. He went on to state that ‘[T]he word “interest” in the best interests test does not confine the court to considering the self-interest of P. The actual wishes of P, which are altruistic and not in any way, directly or indirectly self-interested, can be a relevant factor. Further, the wishes which P would have formed, if P had capacity, which may be altruistic wishes, can be a relevant factor’ (para. 56). This is certainly encouraging; however the focus is still very much on P's interests and attributing these in a way which includes others, rather than being open and explicit about the existence of other relevant considerations.

^6. This similarly reflects the findings of Gilbar's (2011) study which suggested that although individuals want involvement of family members, they also want to retain the final say over decisions. Like Coggon (2008b), I agree that the injunction to focus on the person lacking capacity entailed in the direction to consider their ‘best interests’ reflects the fact that ultimately they will be most affected by the decision. So long as this does not prevent other considerations from being considered- and I don't think it has to, provided some direction is given to consider other relevant interests- then this is an appropriate balance.

^7. The concepts of relational autonomy and supported decision making have gained prominence in legal commentary recently with regard to the literature on the United Nations Convention on the Rights of Persons with Disabilities 2006. This is a positive development in this context for emphasising the voice of the person lacking capacity and enhancing their capabilities in decision making. As Richardson discusses, ‘[a] relational approach tends to a supported decision-making model: autonomy, or its legal counterpart mental capacity, is not to be assessed in the individual in isolation, rather she is to be supported and helped’ (Richardson, 2012, p. 10).

^8. Talking Mats are perhaps one means by which such collaborative discourse can be facilitated in the context of dementia. ‘Talking Mats provides a framework whereby the needs and views of the person with dementia and their carer can be articulated and shared [enabling them to] jointly discuss and make decisions’ (Murphy & Oliver, 2012, p. 178).