Decisionmaking and actiontaking law and competence

Generally, the law in relation to decision-making and action-taking, that is the common law (developed by the judges) and statute law, might take one of three approaches to mentally abnormal offenders.

• The law might adopt the same approach for mentally abnormal offenders as for anyone else.

• The law might adopt an approach dependent upon the competence of the individual that might be affected by the mental state of the mentally abnormal offender.

• The law might adopt an approach recognizing the impact of being a mentally abnormal offender that may be based upon the effects or mere status of the mental state.

There is no reason to examine further the law that is not different for the mentally disordered. Competence

There are a number of circumstances in which decision-making is crucial. For a decision to be made and relied upon by another, the person making it must be competent. There are broad parameters about competency that are generalizable, even though the nature of any given type of decision will mean that the specifics of the law make variable demands.

First, it is clear that the question of competence is one that is related to a specific decision at a specific time. In English law, there is no question of a hearing to determine capacity as an overall assessment of decision-making ability, though this is possible in many common-law-based jurisdictions, such as certain American states and Australian jurisdictions. Rather, the question of competence to make any given decision is to be determined in relation to that particular decision alone.

Second, it is clear that competence is a concept that is to be interpreted functionally. ^.i34 and 5 This means that the status of the decision-maker is not determinative of the question of her or his competence. A status approach makes assumptions about an individual's decision-making competence on the basis of a particular characteristic, and there is no empirical evidence to support the validity of such an approach. (56 andD The mental state of the decision-maker may be the reason why competence is put into question, but mental state in itself is rarely, if ever, sufficient to determine the matter. Mental state may have relevance to decision-making in that certain states will impact on the ability to understand and process information. Furthermore, the outcome of a decision is also not in itself sufficient to determine the matter. The fact that any given decision is not reasonable does not mean that the decision-maker is not competent to have made that decision. For example, the simple fact that a patient disagrees with the doctor does not mean that the decision is that of an incompetent decision-maker, though lack of congruence with the proposals of a doctor may cause questions to be asked about decision-making competence. The outcome approach has been rejected in a number of jurisdictions. (58) It is internationally recognized that anyone can make what might be termed objectively silly decisions without necessarily giving rise to doubts about competence. However, the regularity with which silly decisions are made may raise doubts about competence as also will the inter-relation between mental state and quality of decisions. In the United Kingdom, these points are further reflected in the fact that there is a legal presumption that a person is competent to make her or his own decision once adult state is reached.

The functional approach requires that the test of competence be related to the particular decision to be made, at the particular time that it must be made. (5,9) There is a range of abilities that competence might involve. Much of the work on competence has been undertaken in the context of health-care law and in relation to consent to treatment. Much of this work has been undertaken in the United States. Two leading thinkers, Grisso and Appelbaum, (!°) have, with colleagues, identified four abilities that can be involved in competency:

• evidencing a choice

• understanding

• appreciation

• reasoning or rationality.

Any given jurisdiction will adopt one or more of these abilities(5) in what it looks for in relation to competency assessments. There is no consistency, currently, as to which one or more of the abilities must be satisfied, except to say that almost all jurisdictions require understanding to some degree. This lack of consistency reflects the developing international understanding of the concept of competence. If we take English health-care law as an example, it can be seen that, in the early stages, understanding was the prime ability that had to be established, though the patient also had to evidence a choice. But, more recently, it seems that the courts are being attracted to an approach that may ultimately see competence only being satisfied where all four abilities are satisfied. (1, 12) Requiring rather more of an individual to satisfy the requirement of competence may be regarded as a better means of satisfying the crucial bioethical principle of self-determination or respect for the principle of autonomy, since if someone is not truly able to exercise self-determination, there is no respect for autonomy if, nevertheless, that person's 'decisions' are legally binding. This means that rather more 'decisions' are open to the challenge on the basis that they are not made by someone competent to do so. A stringent approach to competence may be hard to accept. It must then be assessed (as a general matter) whether it would be better to reduce the standard and so enable more people to be assessed as competent or whether lowering the standard is illusory as being for the benefit of people whose competence may be open to question. Therefore it is hardly surprising that there continues to be debate as to the abilities that any individual must possess (and the level of functioning of that ability) in order to determine whether he or she is competent to make a particular decision. Wong et al.(5) make the point, drawing on the work of others, that the functional approach is not without problems. They point out that it is time consuming, legal standards vary between jurisdictions, and there is uncertainty about the threshold to be satisfied in determining competence.^13»

The functional approach to decision-making is not limited, in its application, to health-care decisions. In principle, it may be applied to any type of decision. For example, the making of wills and the entering into of contracts are obvious examples where a functional approach might well apply. Indeed, it is the case that this is the right approach in these areas. However, it does not follow that the same abilities will be required for these decisions as for treatment decisions. Indeed, in England and Wales, where there is movement away from looking only for understanding in treatment decisions, it is not clear of the extent to which this will impact in other areas of decision-making, since understanding has, traditionally, been the key concept. So, for example, in the making of wills the leading case, Banks v.

Goodfellow,(14) requires that a person:

ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them.

However, matters are never straightforward. This test looks as though it is searching only for the ability of understanding. Further reflection, however, will indicate that it actually demands rather more of the person making the will. Clearly what is required is specifically related to the activity in question, as would be expected. What is being demanded might be regarded as the equivalent both of the appreciation and the reasoning ability noted for treatment decisions. Whilst the level at which the will writer must operate is not that of a lawyer, nevertheless he or she must be aware of the context in which the will is being made and must think through the competing potential demands on his or her estate. Of course, will writers can make silly dispositions, even going so far as to exclude financially dependent relatives. However, it must be recalled that an outcome that is questionable or unreasonable is not the same as the will or decision being made on the basis of an unacceptable reasoning process. An eccentric person might well, for example, not wish to leave anything to his or her relatives. (15> Thus, in any jurisdiction, care must be taken to consider a particular test in deciding which of the four abilities are to be identified, and the answer to that question may demand very careful analysis.

Funny Wiring Autism

Funny Wiring Autism

Autism is a developmental disorder that manifests itself in early childhood and affects the functioning of the brain, primarily in the areas of social interaction and communication. Children with autism look like other children but do not play or behave like other children. They must struggle daily to cope and connect with the world around them.

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