Competency and Consent

Presentation to the First International Conference on Individualized Funding and Self-Determination, Seattle, 2000

Marcia Riouxe-mail:

mrioux@interlog.com

Potential of Law to Promote an Inclusive Society

By articulating the rights of people with disabilities; or

By constructing a legal framework for the achievement of substantive equality.

Law and Disability

values of society reflected in laws and in their interpretation by the courts

laws are in constant change laws reflect many different views

of disability and are not

necessarily consistent

Supreme Court of Canada  

“There are other reasons for approaching an application for sterilization of a mentally handicapped person with the utmost caution. To begin with, the decision involves values in an area where our social history clouds our vision and encourages many to perceive the mentally handicapped as somewhat less than human. This attitude has been aided and abetted by now discredited eugenic theories whose influence was felt in this country as well as in the United States”

 

What is self-determination?

Why does it conflict with legal notions of capacity?

Self-determination is:

“… acting as the primary causal agent in one’s life and making choices and decisions regarding one’s quality of life free from undue external influence or interference”. (Wehymer, 1992)

Elements:– autonomy – self-regulation– psychological empowerment – self-realization

How Fundamental is Autonomy?

Is it a balance of benefit and harm? Who can make that decision? And in what

circumstances? Is best interest:

– Future harm of the person?– The welfare and benefit of the person?

At what point is someone’s best interest better determined by a third party?

Voluntariness

Necessary information

Competence

Elements of Consent

Competency

Examples:– an adult who is repeatedly and continuously

unable to care for herself and to make reasonable judgments in respect of matters relating to her person (Alberta guardianship/Dependents Adult Act)

The Dilemma of Best Interests

Obscures right to equal protection and benefit of the law (Eaton: Ont. Ct. of Appeal)

Right to equality trumped by decision-maker acting in their best interest (Eaton: S.C.C.)

Who decides best interests – experts or parents?

“best interest”

    “it is obviously fiction to suggest that a [substituted] decision is that of the mental incompetent, however much the court may try to put itself in her place. What the incompetent would do if she or he could make the choice is simply a matter of speculation”

S.C. Justice Laforest, Eve

parens patriae jurisdiction

“substituted judgment” ie. to act in best interests of the mentally incompetent person (U.S.)

“best interests” ie. attempt to determine what decision the mentally incompetent person would make.

Competence/ Guardianship (Property)

Court’s function is to protect those unable to take care of themselves.

To declare someone incompetent, court has to show that person cannot manage his/her own affairs

Competency/Consent (Person)

Scope of parens patriae jurisdiction unlimited - use exercised with great caution that increases with seriousness of matter.

Parens patriae jurisdiction confined to benefit and protection of the disabled person.

Every surgical procedure requires the prior consent of the patient or someone lawfully authorized on his/her behalf ; otherwise it constitutes battery.

U.N. Convention on the Rights of the Child - Article 12

State parties shall assure to the child who is capable of forming his or her views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child