TY - JOUR
T1 - Freedom to negotiate
T2 - A proposal extricating 'capacity' from 'consent'
AU - Brosnan, Liz
AU - Flynn, Eilionóir
PY - 2017/3/1
Y1 - 2017/3/1
N2 - In this paper, we seek to radically reframe the legal construct of consent from a disability perspective. Drawing on feminist scholarship and human rights standards around 'free and informed consent', we apply a concept of freedom to negotiate to laws regulating both consent to sex and medical treatment - key areas in which the legal agency of people with disabilities (especially people with cognitive disabilities) is routinely denied, restricted or ignored. We set out the essential ingredients for reframing consent: namely, legal personhood, freedom to negotiate and understanding. We also outline conditions (i.e. coercion, undue influence and power imbalances) that impede valid consent. This represents a first attempt to move beyond labelling adults with certain disabilities as lacking the 'mental capacity' necessary to give valid consent - in order to explore in more depth particular expressions of consent or refusal and seek new validity criteria, beyond the label of 'mental incapacity'.
AB - In this paper, we seek to radically reframe the legal construct of consent from a disability perspective. Drawing on feminist scholarship and human rights standards around 'free and informed consent', we apply a concept of freedom to negotiate to laws regulating both consent to sex and medical treatment - key areas in which the legal agency of people with disabilities (especially people with cognitive disabilities) is routinely denied, restricted or ignored. We set out the essential ingredients for reframing consent: namely, legal personhood, freedom to negotiate and understanding. We also outline conditions (i.e. coercion, undue influence and power imbalances) that impede valid consent. This represents a first attempt to move beyond labelling adults with certain disabilities as lacking the 'mental capacity' necessary to give valid consent - in order to explore in more depth particular expressions of consent or refusal and seek new validity criteria, beyond the label of 'mental incapacity'.
UR - http://www.scopus.com/inward/record.url?scp=85012886665&partnerID=8YFLogxK
U2 - 10.1017/S1744552316000471
DO - 10.1017/S1744552316000471
M3 - Review article
AN - SCOPUS:85012886665
SN - 1744-5523
VL - 13
SP - 58
EP - 76
JO - International Journal of Law in Context
JF - International Journal of Law in Context
IS - 1
ER -