Enabling the Right to Liberty of the Person in Aged Care Homes

Abstract

Abstract This article examines the enjoyment of the right to liberty of residents of aged care homes, with a particular focus on those living with cognitive disability (most notably, dementia), and the tension between upholding a person’s autonomy and protecting them and others from harm. The analysis approaches this potential tension from two perspectives: firstly, by examining and evaluating different legal conceptions of the right to liberty of the person, and secondly, by examining the conditions and related rights, which enable the enjoyment of the right to liberty by aged care residents living with cognitive disability, including the right to autonomy and the right to long-term quality care. It is argued that a relational approach to autonomy is required, which places the enjoyment of the right to liberty within the broader context of an autonomy-enabling environment. Interrogating what we mean by ‘autonomy’ and ‘care’ may facilitate the enjoyment of the right to liberty for those most vulnerable in residential care.