Competence to Consent

Risk‐Sensitive Assessment of Decision‐Making Capacity: A Comprehensive Defense

“…Some critics worry that the risk‐sensitive DMC model reverts to an outcome‐based model of DMC 21 because a risk‐sensitive model is “incompatible with the principle that assessments of decision‐making capacity should utilize a standard that is process‐oriented, and not result‐oriented.” 22 Some worry that risk‐sensitive DMC violates a value‐neutral concept of DMC 23 and constitutes “the unjustified introduction of normative values into the assessment of competence, and thus, confuses the kind of competence an objective (and non‐paternalistic) standard of competence aims to assess.” 24 Others worry that risk‐sensitive DMC imports the assessor's values into the evaluation 25 and therefore undermines the “competency doctrine” by allowing the evaluator “to limit [the person's] liberty on the basis of the expert's personal values.” 26 …”

“…Add to this that many writers distrust doctors or health care professionals in general, believing that they are inclined toward paternalism 27 . Some speak of the “bias of [health care practitioners]” that makes the “threat” of paternalism “inherent in this approach.” 28 Others assert that risk‐sensitive DMC “simply serves to raise the standard of competence that must be met by a patient who wishes to maintain his/her autonomy in the face of a disagreement with a physician regarding the best course of treatment for him/her” 29 and that, under such assessment, “the riskier decisions become, the more willing clinicians will be to trade off respect for the patient's wishes with what the clinicians deem to be in their best interests, by holding patients to higher degrees of competence in the face of higher risks.” 30…”