In the third seminar of our QUT Global Law, Science and Technology series for 2021, co-hosted by the Australian Centre for Health Law Research (ACHLR), Professor Margaret Isabel Hall (Adjunct Professor, ACHLR) looked critically at the problematic construction and application of “autonomy” and “vulnerability” and considered the difference it would make to place an alternative account of these ideas at the principled centre of analysis.
Theories of autonomy and vulnerability lie at the conceptual core of the Supreme Court of Canada’s reasoning in the 2015 case of Carter v Canada (finding the “blanket prohibition” on Medical Assistance in Dying (MAiD) created by the Criminal Code to be unconstitutional) and the continuing debate about how and why access to MAiD should be enabled and/or limited.
This paper looks critically at the problematic construction and application of “autonomy” and “vulnerability” in Carter and considers the difference it would make to place an alternative account of these ideas at the principled centre of analysis.
Carter’s conflation of the distinct legal concepts of self-ownership and self-direction within a unified category of “autonomy” is a source of confusion within the case, and has muddied the ongoing controversies about MAiD eligibility in Canada. The concept of vulnerability applied in Carter (that wise doctors will be able to recognise and respond to “vulnerable persons” as opposed to an invulnerable norm) is also problematic, apparently conflating vulnerability with a bio-medical account of mental capacity.
Dr Margaret Isabell Hall, BA, LLB, LLM, PhD is a Professor and Society of Notaries Public of BC Chair in Applied Legal Studies in the School of Criminology at Simon Fraser University in British Columbia, Canada. Margaret’s research integrates doctrinal analysis with qualitative research methodologies and her current areas of research interest include law and dementia, mental capacity and undue influence, medical assistance in dying, and tort law.
Prior to joining Simon Fraser University, Margaret was an Associate Professor in the Faculty of Law at Thompson Rivers University (as a founding member of that Faculty) and an Assistant Professor in the UBC Faculty of Law. Margaret has also worked in law reform and was the first Director of the Canadian Centre of Elder Law Studies.
About the series
The QUT Global Law, Science and Technology Seminar Series aims to bring together national and international speakers who will explore the personal, societal and governance dimensions of solving real world problems which are influenced by, and through the interactions of science, technology and the law.
The series will host speakers who think about ‘technology’ and ‘science’ as broadly construed to refer to methods of framing or interacting with the world, and that enable the critical and imaginative questioning of the technical, science, environmental and health dimensions of law and life.
- The Blockchain Conundrum: Humans, Community, Regulation and Chains
- Runaway Technology: Can Law Keep Up?
- Litigating Science: Climate Change and the Rocky Hill Mine case
- AI in the Wild: Sustainability in the Age of Artificial Intelligence
- Help: The Digital Transformation of Humanitarianism and the Governance of Populations
- Patient Rights and Healthcare Decision-making after COVID-19: Transformations and Future Directions
- Past, or coming, or to come. Rights, interests and posthumous parenthood