Peer-Reviewed Journal Details
Mandatory Fields
Brosnan, L,Flynn, E
2017
March
International Journal Of Law In Context
Freedom to negotiate: a proposal extricating 'capacity' from 'consent'
Published
Altmetric: 2WOS: 6 ()
Optional Fields
MENTAL-HEALTH-CARE INTELLECTUAL DISABILITIES DECISION-MAKING SEXUAL CONSENT POWER CHOICE PRESSURES COERCION LEVERAGE INSIGHT
13
58
76
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'.
10.1017/S1744552316000471
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