Constructing Competence: Formulating Standards of Legal Competence to Make Medical Decisions

Abstract

A young woman twenty-six weeks pregnant and dying from cancer lies heavily sedated and attached to a respirator. Is she competent to determine what life-prolonging measures should be taken, or to consent to an emergency cesarean section that may save her fetus but will probably shorten her life? A quadriplegic young man wishes to end his life and requests a court order granting immunity for the medical staff who will unhook his respirator and administer sedatives. Is he competent to choose to die? A person's competence will have implications for whether he or she is allowed to decide what type of treatment, if any, is received; whether treatment is discontinued, including life-sustaining treatment; and whether medical professionals implementing decisions are exposed to civil or criminal liability.

Keywords: Medical decisions, law of informed consent, autonomy, capacity, standard of competence

JEL Classification: K10, K32