The Conflation of Competence and Capacity in English Medical Law: A Philosophical Critique [Book Review]

Ethical and legal discourse pertaining to the ability to consent to treatment and research in England operates within a dualist framework of “competence” and “capacity”. This is confusing, as while there exists in England two possible senses of legal capacity – “first person” legal capacity and “delegable” legal capacity, currently neither is formulated to bear a necessary relationship with decision-making competence. Notwithstanding this, judges and academic commentators frequently invoke competence to consent in discussions involving the validity of offering or withholding consent as a synonym for legal capacity to consent. I argue that this gives rise to a conflation, jeopardising clarity and consistency in law. This is somewhat less problematic in instances of “first-person” legal capacity that are heavily informed by criteria for decision-making competence than in the second sense of legal capacity, which is qualitatively different from decision-making competence, or with first-person legal capacity when defined in different terms from competence. The paper concludes by proposing that the soundest resolution to this problem is by making decision-making competence a necessary and sufficient condition of first-person legal capacity, affording a more scrupulous distinction between the two different forms of legal capacity that exist
Keywords consent  decision-making competence  delegable legal capacity  English law  first-person legal capacity  legal capacity  mental capacity  task specific competence
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DOI 10.1007/s11019-005-0537-z
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Reason and Morality.Adina Schwartz & Alan Gewirth - 1979 - Philosophical Review 88 (4):654.
Deciding for Others: The Ethics of Surrogate Decision Making.Allan E. Buchanan & Dan W. Brock - 1992 - Philosophy and Phenomenological Research 52 (1):232-237.

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