Reflections on segregating and assessing areas of competence

Various complexities that arise in the application of legal and/or clinical criteria to the actual assessment of competence/capacity are discussed, and a particular way of understanding the nature of such criteria is recommended.     

Faulty Judgment,Expert Opinion,and Decision-Making Capacity

An assessment of decision-making capacity is the accepted procedure for determining when a person is not competent. An inferential gap exists between the criteria for capacity specific abilities and the legal requirements to understand relevant information and appreciate the consequences of a decision. This gap extends to causal influences on a person'scapacity to decide. Using a published case of depression, we illustrate that assessors' uses of diagnostic information is frequently not up to the task of bridging this inferential gap in a justifiable way. We then describe cases of faulty judgement which challenge the understanding of diagnostic causal influences. These cases help to clarify the nature of the expertise required for capacity assessments. In practice, the requirements of decision-making capacity are often abandoned to other considerations due to a lack of requisite expertise. The legal policy supporting decision-making capacity as a means to protective intervention is justified only if the requisite expertise is developed. We propose the requisite expertise to be developed in the long term as a distinct multidisciplinary endeavour.     

Competency and practical judgment

At least four different frameworks — psychiatric, cognitive, functional and decision-making — are used in the evaluation of competence, all of which remain more or less unrelated in the literature. In the first section of this paper we consider various meanings of “competence,” in order to arrive at a definition of the term relevant to the medical and legal setting. Patient or client “competence,” we conclude, refers to the practical abilities that individuals employ in pursuing their own autonomous goals in life. We then show how a systematic categorization of these practical abilities — which we call a taxonomy of practical judgment — allows us to show when the traditional frameworks for the evaluation of competence may or may not be useful in the evaluation of a particular competence. In the final section we explore some of the normative considerations underlying the taxonomy. For instance, competence is not only related to intrinsic abilities but to resources available in the community. Here we touch on questions related to the fair distribution of community resources.     

Mental competence and the question of beneficent intervention

The authors examine recent arguments purporting to show that mental incompetence (lack of decision-making capacity) is not a necessary condition for intervention in a person's best interests without consent. It is concluded that these arguments fail to show that competent wishes could justifiably be overturned. Nonetheless, it remains an open question whether accounts of decision-making capacity based solely on the notions of understanding and appreciation can adequately deal with various complexities. Different possible ways of resolving these complexities are outlined, all of which need further exploration.