From duty to care to duty to be well : a discourse analysis of Ontario's capacity to consent law

Principles of neo-liberalism, our current doctrine of political rationality, call for reduced state involvement and a greater reliance on autonomous, self-governing individuals who avoid risks and take initiatives to improve their well-being. However contradictions arise within these principles. In making autonomous choices, one must also adhere to the values of health and security; individual choice is thereby constrained. Legal convention upholds the individual right to self-determination with respect to medical treatment. Patients must therefore give their informed consent before medical treatments or procedures are performed. The exception to this rule lies where a person lacks capacity to consent, such as in the case of certain psychiatric patients In this thesis I examine Ontario's capacity to consent law specifically as it applies to the capacity to consent to psychiatric treatment. Through a discourse analysis of written legal decisions I argue that successive changes in consent and capacity law, most notably the inclusion of community treatment orders, compel psychiatric patients to align themselves with neo-liberal principles, namely the "duty to be well." Taking a governmentality approach, I argue that dominant discourses on risk, fear, freedom, autonomy and security inform the legal governance of psychiatric subjects, compelling these subjects to engage in techniques of "responsibilization" in an effort to reduce various "risks of harm.