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SELF-DETERMINATION, LEGAL COMPETENCE AND HUMAN DIGNITY IN SOCIAL CARE FOR OLDER PERSONS - THE CAPABILITIES APPROACH IN LEGAL SCHOLARSHIP

Conference contribution
Authors Eva-Maria Svensson
Therese Bäckman
Torbjörn Odlöw
Published in IAGG-ER Conference 2019
Publication year 2019
Published at Department of Law
Centre for Ageing and Health (Agecap)
Language en
Links https://iagger2019.se/program/scien...
Subject categories Law and Society

Abstract

Objectives: This paper addresses the tensions between self-determination and human dignity within the Swedish legal system regarding social care for older people. What if a person does not have the physical or cognitive ability to make decisions, or if a person decides to live in a way that is not in accordance with a reasonable standard of living? The legal system offers legal representation in the first situation. The second situation is more complicated. The obligation for the municipalities to ensure everyone human dignity and a life in accordance with fundamental values, such as a reasonable standard of living, irrespective of the person’s own wishes, might be controversial and contradictory to self-determination. Theories and methods: The tensions are elaborated with help of the capabilities approach. formulated by Sen and further elaborated by Nussbaum (who extended the capability concept to plural. The capabilities approach is sensitive towards inequalities and lack of resources for a part of the population, and meets the need for acknowledging distribution, and additionally, raising the levels of life quality (Nussbaum 2013). The approach is used to analyze the impact of legal and political obligations expressed in legal texts for the specific group of older persons. Here, in this paper the focus is on the macro level, how legal regulation promotes or hindrances capability for older persons. Results: Capability is not only a matter of self-determination and autonomy, but also considerations and care for persons who are not in a situation where they have or are able to have concern for themselves. To enable and empower someone requires support, and law is part of the structural support that form the living conditions for individuals. Conclusion: The capabilities approach might be of help in an argumentation stressing the importance of balancing the, to some extent contradictory, concepts legal competence, self-determination and human dignity in order to promote the capability of older persons.

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