Legal decision making and dementia: a discourse and conversation analysis study

Waterman, Chloe (2023). Legal decision making and dementia: a discourse and conversation analysis study. University of Birmingham. Ph.D.

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Abstract

This thesis adopts a socio-legal approach to investigating mental capacity law and legal decision making for people with dementia and their carers. I use the empirical research methods of semi-structured interviews and observations to answer my research questions. I conducted 20 interviews with people with dementia and their carers, and four observations of solicitor-client meetings where a will was being discussed. I used this data to answer three main questions. Firstly, how do people living with dementia and their informal carers access and interpret legal advice, what is the content of this legal advice, specifically how does this rhetoric form the construct of 'capacity law', and what impact does this have on their understanding of their legal rights and their mental capacity? Secondly, how do legal actors assess capacity and how does this impact the legally relevant decisions made in the lives of people with dementia? And finally, what is the contribution of observational methods, such as Conversation Analysis (hereafter CA), to understanding legal decision making in action? My data is analysed using thematic discourse analysis and Conversation Analysis. This enables a rigorous exploration of the rhetoric which constructs what capacity law is in the everyday lives of people with dementia and their carers, as well as in the everyday legal setting of a solicitor’s office. In my analysis, I demonstrate how capacity law in England and Wales currently restricts people with dementia and their carers as it does not properly reflect the reality of their relational lives. I contribute to several theories in this thesis, drawing from sociological, psychological and legal theories. I argue that if capacity law practice adopted a relational approach to personhood and sought a more inclusive, contextual understanding of the impact of people's relationships and experiences when decision-making, then people with dementia and their carers could be empowered. People with dementia and their carers’ voices are at the centre of this thesis and my proposals, therefore I can conclude that to properly reflect and respond to their needs law and policy must adapt, allowing for the complexity of everyday life.

Type of Work:

Thesis (Doctorates > Ph.D.)

Award Type:

Doctorates > Ph.D.

Supervisor(s):