This paper describes how the English courts, in the “heroic act of judicial invention,” have deve... more This paper describes how the English courts, in the “heroic act of judicial invention,” have developed a distinct vulnerability jurisdiction, separate and apart from the ancient jurisdiction of parens patriae, through the exercise of the inherent jurisdiction of the court. This new jurisdiction provides a legal basis and mechanism for the disruption of exploitative relationship contexts. The objective of that disruption is not protection per se (the parens patriae objective), but the safeguarding of individual autonomy rights in situations where those rights cannot be effectively exercised without intervention. The paper concludes with a discussions of implications of the English “invention” in Canadian jurisprudence.
Provided by British Columbia's network of post-secondary digital repositories 1. 2014 BCSC 165 [B... more Provided by British Columbia's network of post-secondary digital repositories 1. 2014 BCSC 165 [Bentley].
This paper examines mental capacity as a medico-legal social construct and concludes that, while ... more This paper examines mental capacity as a medico-legal social construct and concludes that, while the construct works reasonably well in the contexts of property-related transactions and health-treatment decisions, it is deeply problematic and is a source of dysfunction in the context of guardianship and guardianship-type interventions. There is nothing natural, compelling, or necessary about the concept of mental capacity, and the author proposes an alternate construct more consistent with the purpose of guardianship and guardianship-type interventions: vulnerability. As the capacity construct is deeply enmeshed with a traditional liberal theory of autonomy (the capacity-autonomy equation or paradigm), so the vulnerability construct described here is more consistent with a theory of relational autonomy. The author contends that the conceptual framing provided by the capacity-autonomy paradigm in the guardianship context has precluded the coherent theorization of vulnerability, and s...
This paper examines mental capacity as a medico-legal social construct and concludes that, while ... more This paper examines mental capacity as a medico-legal social construct and concludes that, while the construct works reasonably well in the contexts of property-related transactions and health-treatment decisions, it is deeply problematic and is a source of dysfunction in the context of guardianship and guardianship-type interventions. There is nothing natural, compelling, or necessary about the concept of mental capacity, and the author proposes an al-ternate construct more consistent with the purpose of guardianship and guardianship-type interventions: vulnerability. As the capacity construct is deeply enmeshed with a traditional liberal theory of autonomy (the capacity-autonomy equation or paradigm), so the vulnerability construct described here is more consistent with a theory of relational autonomy. The author contends that the conceptual framing provided by the capacity-autonomy paradigm in the guardianship context has precluded the coherent theorization of vulnerability, and she suggests a more coherent framework for doing so by drawing on theories of equity and relational autonomy.
In this article the author addresses the question of liabilityforfailure to prevent the risk ofin... more In this article the author addresses the question of liabilityforfailure to prevent the risk ofinjury to another Unlike the civil law and the statutory law of the state of Vermont the common law has not developed a general duty to warn of a risk and thereby prevent harm. Where such all obligation has been imposed it is possible to characterise the cases as very fact-sensitive'or as based on some specific relationship between the plaintiff and defendant. This essay presents the arguments for the acceptance ofa generalised duty. Dans le présent article, l'auteur aborde la question de la responsabilité d'une personne en raison de son omission à prendre les mesures adéquates afin d'éviter de causer tout préjudice corporel à un tiers. Contrairement au droit civil ainsi qu'au droit statutaire de l'état du Vermont, la comtnon law n'apas encore développé de théorie générale de dénonciation d'un risque ou d'un danger visant ainsi à prévenir de causer un préjudice. Dans l'hypothèse où une telle obligation a été imposée, on remarque que c'est dans des situations où l'impact des faits fut déterminant ou lorsque existait un lien particulier entre le demandeur et le défendeur Le teste qui suit présente les arguments en faveur de l'acceptation d'un devoir généralisé de sécurité à l'égard des tiers.
Th is paper considers the meaning of decision-making, including substitute decision-making, for p... more Th is paper considers the meaning of decision-making, including substitute decision-making, for persons with dementia. Th e paper discusses the historical development of adult guardianship, from the King's stewardship of the property of " fools " and " lunatics " to the modern mechanisms of substitute decision-making, and the relationship between substitute decision-making and a particular ideal of autonomy. Th e paper concludes with a discussion of Bentley v Maplewood Seniors Care Society, a case concerning the present choices of a woman with dementia, the decisions set out in the " living will " she drafted many years earlier (prior to dementia), and the decisions made by the woman's (purported) representatives on her behalf. Th e case invites us to consider whether the decisions of the former, mentally capable self can ever trump the choices of the current self with dementia.
This paper describes how the English courts, in the " heroic act of judicial invention " , have d... more This paper describes how the English courts, in the " heroic act of judicial invention " , have developed a distinct vulnerability jurisdiction, separate and apart from the ancient jurisdiction of parens patriae, through the exercise of the inherent jurisdiction of the court. This new jurisdiction provides a legal basis and mechanism for the disruption of exploitative relationship contexts. The objective of that disruption is not protection per se (the parens patriae objective), but the safeguarding of individual autonomy rights in situations where those rights cannot be effectively exercised without intervention.
This paper describes how the English courts, in the “heroic act of judicial invention,” have deve... more This paper describes how the English courts, in the “heroic act of judicial invention,” have developed a distinct vulnerability jurisdiction, separate and apart from the ancient jurisdiction of parens patriae, through the exercise of the inherent jurisdiction of the court. This new jurisdiction provides a legal basis and mechanism for the disruption of exploitative relationship contexts. The objective of that disruption is not protection per se (the parens patriae objective), but the safeguarding of individual autonomy rights in situations where those rights cannot be effectively exercised without intervention. The paper concludes with a discussions of implications of the English “invention” in Canadian jurisprudence.
Provided by British Columbia's network of post-secondary digital repositories 1. 2014 BCSC 165 [B... more Provided by British Columbia's network of post-secondary digital repositories 1. 2014 BCSC 165 [Bentley].
This paper examines mental capacity as a medico-legal social construct and concludes that, while ... more This paper examines mental capacity as a medico-legal social construct and concludes that, while the construct works reasonably well in the contexts of property-related transactions and health-treatment decisions, it is deeply problematic and is a source of dysfunction in the context of guardianship and guardianship-type interventions. There is nothing natural, compelling, or necessary about the concept of mental capacity, and the author proposes an alternate construct more consistent with the purpose of guardianship and guardianship-type interventions: vulnerability. As the capacity construct is deeply enmeshed with a traditional liberal theory of autonomy (the capacity-autonomy equation or paradigm), so the vulnerability construct described here is more consistent with a theory of relational autonomy. The author contends that the conceptual framing provided by the capacity-autonomy paradigm in the guardianship context has precluded the coherent theorization of vulnerability, and s...
This paper examines mental capacity as a medico-legal social construct and concludes that, while ... more This paper examines mental capacity as a medico-legal social construct and concludes that, while the construct works reasonably well in the contexts of property-related transactions and health-treatment decisions, it is deeply problematic and is a source of dysfunction in the context of guardianship and guardianship-type interventions. There is nothing natural, compelling, or necessary about the concept of mental capacity, and the author proposes an al-ternate construct more consistent with the purpose of guardianship and guardianship-type interventions: vulnerability. As the capacity construct is deeply enmeshed with a traditional liberal theory of autonomy (the capacity-autonomy equation or paradigm), so the vulnerability construct described here is more consistent with a theory of relational autonomy. The author contends that the conceptual framing provided by the capacity-autonomy paradigm in the guardianship context has precluded the coherent theorization of vulnerability, and she suggests a more coherent framework for doing so by drawing on theories of equity and relational autonomy.
In this article the author addresses the question of liabilityforfailure to prevent the risk ofin... more In this article the author addresses the question of liabilityforfailure to prevent the risk ofinjury to another Unlike the civil law and the statutory law of the state of Vermont the common law has not developed a general duty to warn of a risk and thereby prevent harm. Where such all obligation has been imposed it is possible to characterise the cases as very fact-sensitive'or as based on some specific relationship between the plaintiff and defendant. This essay presents the arguments for the acceptance ofa generalised duty. Dans le présent article, l'auteur aborde la question de la responsabilité d'une personne en raison de son omission à prendre les mesures adéquates afin d'éviter de causer tout préjudice corporel à un tiers. Contrairement au droit civil ainsi qu'au droit statutaire de l'état du Vermont, la comtnon law n'apas encore développé de théorie générale de dénonciation d'un risque ou d'un danger visant ainsi à prévenir de causer un préjudice. Dans l'hypothèse où une telle obligation a été imposée, on remarque que c'est dans des situations où l'impact des faits fut déterminant ou lorsque existait un lien particulier entre le demandeur et le défendeur Le teste qui suit présente les arguments en faveur de l'acceptation d'un devoir généralisé de sécurité à l'égard des tiers.
Th is paper considers the meaning of decision-making, including substitute decision-making, for p... more Th is paper considers the meaning of decision-making, including substitute decision-making, for persons with dementia. Th e paper discusses the historical development of adult guardianship, from the King's stewardship of the property of " fools " and " lunatics " to the modern mechanisms of substitute decision-making, and the relationship between substitute decision-making and a particular ideal of autonomy. Th e paper concludes with a discussion of Bentley v Maplewood Seniors Care Society, a case concerning the present choices of a woman with dementia, the decisions set out in the " living will " she drafted many years earlier (prior to dementia), and the decisions made by the woman's (purported) representatives on her behalf. Th e case invites us to consider whether the decisions of the former, mentally capable self can ever trump the choices of the current self with dementia.
This paper describes how the English courts, in the " heroic act of judicial invention " , have d... more This paper describes how the English courts, in the " heroic act of judicial invention " , have developed a distinct vulnerability jurisdiction, separate and apart from the ancient jurisdiction of parens patriae, through the exercise of the inherent jurisdiction of the court. This new jurisdiction provides a legal basis and mechanism for the disruption of exploitative relationship contexts. The objective of that disruption is not protection per se (the parens patriae objective), but the safeguarding of individual autonomy rights in situations where those rights cannot be effectively exercised without intervention.
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Papers by Margaret Hall