Risk-related standards of competence are a nonsense

Abstract

If a person is competent to consent to a treatment, is that person necessarily competent to refuse the very same treatment? Risk relativists answer no to this question. If the refusal of a treatment is risky, we may demand a higher level of decision-making capacity to choose this option. The position is known as asymmetry. Risk relativity rests on the possibility of setting variable levels of competence by reference to variable levels of risk. In an excellent 2016 article in Journal of Medical Ethics (JME), Rob Lawlor defends asymmetry of this kind by defending risk relativity, using and developing arguments and approaches found in earlier work such as that of Wilks. He offers what we call the two-scale approach: a scale of risk is to be used to set a standard of competence on a scale of decision-making difficulty. However, can this be done in any rational way? We argue it cannot, and in this sense, and to this extent, risk relativity is a nonsense.

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

“…Still, as we will discuss more, most internalist critics “account for” welfare concerns by espousing an epistemic model of risk sensitivity: rather than a higher threshold for capacity based on welfare concerns, what is needed when risk is high, these critics assert, is a more careful and rigorous DMC evaluation so that clinicians have greater confidence about a person's capacity and thus about their determination about the person's decisional authority. But until the critics spell out what exactly this epistemic model entails, their criticism that risk‐sensitive DMC is paternalistic is no more explanatory than saying that risk‐sensitive DMC is an externalist model 38 . We discuss different interpretations of the epistemic model fully in the “Substantive and Epistemic Models of Risk‐Sensitive DMC Assessment” section below.…”

An autonomy-based approach to assisted suicide: a way to avoid the expressivist objection against assisted dying laws

“…Whether the threshold for decision-making capacity should be risk relative is, however, highly controversial 25 26. On an autonomy-based approach, the motives of a choice for assisted dying should not be judged according to standards of ‘objective rationality’22 (para.…”

Pragmatic argument for an acceptance-refusal asymmetry in competence requirements

“…In this issue, Pickering, Giles Newton-Howes and Simon Walker (henceforth ‘the authors’) respond to Lawlor’s piece 4. They deny that competence requirements should depend on the level of risk associated with a decision, and thus that there is any basis for the acceptance-refusal asymmetry in competence requirements.…”