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)

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. (shrink)

“Terms that have histories cannot be defined.” – Nietzsche“[T]he reality to which we were attending seemed to resist our thinking it.” – Cora Diamond[1] Much has been learned in recent decades about the behaviour and abilities of many species of non-human animals. Increasingly many who reflect on the abilities of languageless animals are uncomfortable with a once prevalent dichotomy of either assigning these abilities to the realm of mere mechanism or granting such creatures full rationality and more or less the (...) entire range of abilities that involves. This has lead to no little reflection and debate regarding how to proceed in studying animal “cognition,” and about what counts as adequately or accurately explaining animal behaviour. I cautiously hope herein to contribute to the clarity of what is already a discussion too rich and complex to do any justice to here. Little of what I say will be original, but the particular way of approaching the issues herein may shed some light on why certain issues have endured. (shrink)

This article discusses the suggestion, expressed in the three preceding articles in this issue of Ethics & Behavior, that ethics as practiced in the helping professions requires greater organizational democratization. The relevance to this proposal of both a cognitive conception of democracy and an account of the nature of values that establishes their objectivity is also discussed.

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. (shrink)

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.