On the standard view we assess a person’s competence by considering her relevant abilities without reference to the actual decision she is about to make. If she is deemed to satisfy certain threshold conditions of competence, it is still an open question whether her decision could ever be overruled on account of its harmful consequences for her (‘hard paternalism’). In practice, however, one normally uses a variable, risk dependent conception of competence, which really means that in considering whether or not (...) to respect a person’s decision-making authority we weigh her decision on several relevant dimensions at the same time: its harmful consequences, its importance in terms of the person’s own relevant values, the infringement of her autonomy involved in overruling it, and her decision-making abilities. I argue that we should openly recognize the multi-dimensional nature of this judgment. This implies rejecting both the threshold conception of competence and the categorical distinction between hard and soft paternalism. (shrink)

This discussion paper continues the debate over risk‐related standards of mental competence which appears in Bioethics 5. Dan Brock there defends an approach to mental competence in patients which defines it as being relative to differing standards, more or less rigorous depending on the degree of risk involved in proposed treatments. But Mark Wicclair raises a problem for this approach: if significantly different levels of risk attach, respectively, to accepting and refusing the same treatment, then it is possible, on this (...) account, for a patient to be considered competent to accept, but not refuse, the treatment, or vice versa. I argue that this puzzle does not constitute a genuine problem for a risk‐related standard. To this end I focus on the situation where, of two mutually exclusive options, one is riskier, but offering more pronounced benefit, while the other is safer, but offering less benefit. I argue for this proposition: it can take far less insight to know that the safe option is good than to know that the risky option is better. Now say one is actually informed enough to know that the safe option is good, but not enough to know whether the risky option is better; in such a case one is competent to say yes to that first option (the safe one), but not to say yes to the other. (I argue in passing that Pascal's Wager can be interpreted as having precisely this deliberative structure.) I thus conclude that cases do indeed exist where one can be competent to say yes but not no, or vice versa; and that it is thus not an anomaly in the risk‐related standard that it entails the existence of such cases. (shrink)

Adolescents, in many jurisdictions, have the power to consent to life saving treatment but not necessarily the power to refuse it. A recent defence of this asymmetry is Neil Manson's theory of ‘transitional paternalism’. Transitional paternalism holds that such asymmetries are by-products of sharing normative powers. However, sharing normative powers by itself does not entail an asymmetry because transitional paternalism can be implemented in two ways. Manson defends the asymmetry-generating version of transitional paternalism in the clinical context, arguing that it (...) maximizes respect for adolescent autonomy. This article offers an alternative argument in favour of the asymmetry-generating form of transitional paternalism, one that makes appeal to obligations that individuals have to develop self-governance in others. We should share normative powers asymmetrically in the clinical context for three reasons. First, the asymmetric version of transitional paternalism takes seriously duties to support adolescents’ developing autonomy, alongside other duties that adults have to young people. It does so by enabling young people to be involved in important decisions that they would otherwise be excluded from. This is of value because participation of this sort is central to the cultivation of their self-governance. Second, only the asymmetric version gives young people a voice in respect of all clinical actions, and only the asymmetric version leaves open the possibility that the coarse lines of legislation might be ‘fine-tuned’ in individual cases. Third, the asymmetric sharing of normative powers is consistent with the kind of social arrangements that best support autonomy. (shrink)

John Harris claims that is it ‘palpable nonsense’ to suggest that ‘a child might competently consent to a treatment but not be competent to refuse it.’ In ‘Transitional Paternalism: How Shared Normative Powers Give Rise to the Asymmetry of Adolescent Consent and Refusal’ Neil Manson aims to explain away the apparent oddness of this asymmetry of consent and refusal, by appealing to the idea of shared normative powers, presenting joint bank accounts as an example. In this article, I will argue (...) that Manson's account fails to explain away the oddness. Rather, I will argue that there are ambiguities to which Manson has not paid sufficient attention. In fact, as odd as it may sound, I argue that Manson actually agrees with Harris. He fails to recognize that he agrees with Harris because he is not careful enough to distinguish between different asymmetries, which I have labelled the asymmetries of choice, permissibility and competence. (shrink)

John Harris claims that is it ‘palpable nonsense’ to suggest that ‘a child might competently consent to a treatment but not be competent to refuse it.’ In ‘Transitional Paternalism: How Shared Normative Powers Give Rise to the Asymmetry of Adolescent Consent and Refusal’ Neil Manson aims to explain away the apparent oddness of this asymmetry of consent and refusal, by appealing to the idea of shared normative powers, presenting joint bank accounts as an example. In this article, I will argue (...) that Manson's account fails to explain away the oddness. Rather, I will argue that there are ambiguities to which Manson has not paid sufficient attention. In fact, as odd as it may sound, I argue that Manson actually agrees with Harris. He fails to recognize that he agrees with Harris because he is not careful enough to distinguish between different asymmetries, which I have labelled the asymmetries of choice, permissibility and competence. (shrink)

Some bioethicists have argued in favor of a sliding scale notion of competence, paternalistically requiring greater competence in relation to more significant risk. I argue against a sliding scale notion, taking issue with the positions of Allen E. Buchanan and Dan W. Brock, Ian Wilkes, and Joel Feinberg. Rejecting arguments that a sliding scale is supported by legal cases, by ordinary usage, and by fallible judgments about competence, I argue in favor of greater evidence of competence when risk is greater. (...) Two clinical cases are examined, both involving amputation, to show that my fixed concept of competence, with a requirement of clearer evidence of competence when risk is high, better accounts for good moral decisions in bioethics. (shrink)

Limits to paternalism are, in the liberal democracies, partially defined by the concepts of decision-making capacity/incapacity (mental competence/incompetence). The paper is a response to Ian Wilkss (1997) recent attempt to defend the idea that the standards for decisional capacity ought to vary with the degree of risk incurred by certain choices. Wilkss defense is based on a direct appeal to the logical features of examples and analogies, thus attempting to by-pass earlier criticisms (e.g., Culver Gert, 1990) of risk-based standards. Wilkss (...) argument is found wanting on the grounds that he misconstrues the logic of such capacity, especially in accounting for conceptual and pragmatic ties with issues of decisional authority. A diagnosis is offered as to the source of Wilkss error (the assumption that mental competence is a species of wider genus of competence), and an alternative way of accounting for risk within the predominant contemporary legal framework is sketched. (shrink)

Respect for patients’ autonomy has taken a central place in the practice of medicine. Received wisdom holds that respect for autonomy allows overriding a patient’s treatment preferences only if the patient has been found to lack capacity. This understanding of respect for autonomy requires a dichotomous approach to assessing capacity, whereby a patient must be found either to have full capacity to make some particular treatment decision or must be found to lack capacity to make that decision. However, clinical reality (...) is more complicated, and, in borderline cases, different physicians may arrive at disparate judgments of capacity. In such cases, when capacity-determination protocols fail to achieve consensus, physicians would benefit from guidance regarding the clinical decision-making process necessary to elucidate the most ethically sound course of action. This article considers one such case and argues that, in a limited number of cases, respect for autonomy may require overriding a patient’s stated treatment preference when a capacity determination is equivocal, even though the patient has not clearly demonstrated a lack of capacity. (shrink)