Evaluating Medico-Legal Decisional Competency Criteria
In this paper I get clearer on the considerations that ought to inform the evaluation and development of medico-legal competency criteria—where this is taken to be a question regarding the abilities that ought to be needed for a patient to be found competent in medico-legal contexts. In the “Decisional Competency in Medico-Legal Contexts” section I explore how the question regarding the abilities that ought to be needed for decisional competence is to be interpreted. I begin by considering an interpretation that takes the question to be asking about the abilities needed to satisfy an idealized view of competent decision-making, according to which decisional competency is a matter of possessing those abilities or attributes that are needed to engage in good or effective or, perhaps, substantially autonomous or rational decision-making. The view has some plausibility—it accords with the way decisional competency is understood in a number of everyday contexts—but fails as an interpretation of the question regarding the abilities that should be needed for decisional competence in medico-legal contexts. Nevertheless, consideration of why it is mistaken suggests a more accurate interpretation and points the way in which the question regarding the evaluation of medico-legal competency criteria is to be answered. Building on other scholarly work in the area, I outline in the “Primary and Secondary Requirements” section several requirements that decisional competence criteria ought to satisfy. Then, in the “Applying the Framework” section, I say something about the extent to which medico-legal competency criteria, as well as some models of decisional competency proposed in the academic literature, fulfil those requirements.
KeywordsDecisional authority Decisional competency Idealized views of competency Law Medico-legal contexts Mental Capacity Act 2005 Proportionality Necessity
My thanks to Suzanne Uniacke, Paul Gilbert and two anonymous reviewers for their very helpful comments on earlier drafts of this paper.
- 1.A Local Authority v A (2010) EWHC 1549 (Fam).Google Scholar
- 5.Buchanan, A., & Brock, D. (1989). Deciding for others: The ethics of surrogate decision making. Cambridge: Cambridge University Press.Google Scholar
- 6.Charland, L. (1998). Is Mr. Spock mentally competent? Competence to consent and emotion. Philosophy, Psychiatry, & Psychology, 5, 67–68.Google Scholar
- 9.Charland, L. (2011). Decision-making capacity. In The Stanford Encyclopedia of Philosophy (Summer 2011 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/sum2011/entries/decision-capacity/.
- 14.Culver, C. & Gert, B. (2004). Competence. In: Radden, J. (Ed.) The Philosophy of Psychiatry: A Companion (pp. 258–270). Oxford: Oxford University Press, 258–270.Google Scholar
- 15.Damasio, A. (1994). Descartes’ error: Emotion, reason, and the human brain. New York: Grossett & Putnam.Google Scholar
- 17.Dunn, L., Nowrangi, M., Palmer, B., Jeste, D., & Saks, E. (2006). Assessing decisional capacity for clinical research or treatment: A review of instruments. The Journal of the American Society for Psychical Research, 163, 1323–1334.Google Scholar
- 20.Grisso, T., & Appelbaum, P. (1998). Assessing competence to consent to treatment: A guide for physicians and other health professionals. Oxford: Oxford University Press.Google Scholar
- 22.Herring, J. (2009). Protecting vulnerable adults: A critical review of current case law. Child and Family Law Quarterly, 21, 498–512.Google Scholar
- 25.McLean, S. (2010). Autonomy, consent, and the law. London: Routledge-Cavendish.Google Scholar
- 26.Mental Capacity Act 2005. Available at: http://www.legislation.gov.uk/ukpga/2005/9/pdfs/ukpga_20050009_en.pdf.
- 27.Mental Capacity Act 2005 Code of Practice. London: The Stationery Office. http://www.dca.gov.uk/legal-policy/mental-capacity/mca-cp.pdf.
- 28.Re G (An Adult) (2004) EWHC 2222 (Fam).Google Scholar
- 29.Re T (Adult: Refusal of Medical Treatment) (1992) 4 All ER 649.Google Scholar
- 30.Re SK (Proposed Plaintiff) (An Adult by Way of her Litigation Friend) (2005) 2 FLR 230.Google Scholar
- 31.Re SA (Vulnerable Adult with Capacity: Marriage) (2006) 1 FLR 867.Google Scholar
- 34.Tan, J., Stewart, A., Fitzpatrick, R., & Hope, T. (2006). Competence to make treatment decisions in anorexia nervosa: Thinking processes and values. Philosophy, Psychiatry, & Psychology, 13(4), 268–282.Google Scholar
- 35.Uniacke, S. (2013). Respect for autonomy in medical ethics. In: Archard, D. M. Deveaux, N. Manson and D. Weinstock. (Eds.) Reading Onora O’Neill. Routledge. (In Press).Google Scholar
- 36.Vogelstein, E. (2012). Competence and ability. Bioethics. doi: 10.1111/j.1467-8519.2012.01998.x.