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

Abstract
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
Categories (categorize this paper)
DOI 10.1007/s11019-005-0537-z
Options
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

Our Archive


Upload a copy of this paper     Check publisher's policy     Papers currently archived: 34,982
External links

Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library

References found in this work BETA

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.

View all 12 references / Add more references

Citations of this work BETA

Add more citations

Similar books and articles

Mental Capacity and the Applied Phenomenology of Judgement.Wayne Martin & Ryan Hickerson - 2013 - Phenomenology and the Cognitive Sciences 12 (1):195-214.
Running Before We Can Walk: Do We Have the Capacity?Toby Williamson - 2011 - Philosophy, Psychiatry, and Psychology 18 (2):147-150.
Faulty Judgment, Expert Opinion, and Decision-Making Capacity.Michel Silberfeld & David Checkland - 1999 - Theoretical Medicine and Bioethics 20 (4):377-393.
On Risk and Decisional Capacity.David Checkland - 2001 - Journal of Medicine and Philosophy 26 (1):35 – 59.
Mental Competence or Best Interests?Ajit Shah - 2011 - Philosophy, Psychiatry, and Psychology 18 (2):151-152.

Analytics

Added to PP index
2013-12-01

Total downloads
21 ( #286,245 of 2,274,893 )

Recent downloads (6 months)
1 ( #375,919 of 2,274,893 )

How can I increase my downloads?

Monthly downloads

My notes

Sign in to use this feature