Labels versus Contents: Variance between Philosophy,
Psychiatry and Law in Concepts Governing Decision-Making
Margaret A. Somerville
The author investigates the four concepts of
autonomy, self-determination, competence and vol-
untariness as they are defined and used within the
disciplines of philosophy, psychiatry and law to gov-
ern decision-making by individuals concerning
themselves. It is proposed that, although the three
disciplines share a common terminology, the content
and use of these concepts vary between them. First,
it is essential to understand the nature of this vari-
ance in situations where the disciplines of philoso-
phy, psychiatry and law interact as they do, for
example, in clinical ethics consultations in a psychi-
atric context. Second, comparison of the concepts in
the different disciplines provides important insights
with respect to their nature and function, and opens
up the possibility of more precise use and either
expanding or limiting their content or operation.
Third, when working in a transdisciplinary context,
the danger of misleading assumptions from so-called
“fasx-amis” is avoided if one is aware of the differ-
ence in meaning of the same term when used in dif-
ferent disciplines. Fourth, the aims sought in defin-
ing and using these concepts, especially protection of
persons.to whom they are applied, can only be
achieved if their function is clearly understood, both
in each discipline and in the interaction of disciplines
in which they are relevant. It is concluded that, in
practice (especially in applied ethics, psychiatry and
law), we must define and use these concepts in ways
that promote respect for all persons (regardless of the
characteristics of these persons) and that do not deny
such respect. This requires us, first, to view persons
and their characteristics separately from persons’
decisions and their characteristics and, second, to
respect the decisions of all persons unless doing oth-
erwise is clearly justified.
L’auteure 6tudie les concepts d’autonomie, d’au-
tod6termination, de competence et de plein gr6, tels
qu’ils sont d6finis et employds dans les domaines de
la philosophie, de la psychiatrie et du droit, pour
rdgir le m6canisme de prise de d6cision personnelle
des individus. Quoique ces domaines utilisent un
vocabulaire commun, rauteure suggre que le con-
tenu des quatre concepts susmentionn6s, ainsi que
l’usage qu’on en fait, varient d’un domaine A l’autre.
Premirement, il est essentiel de comprendre quelle
est ]a nature de cette diffdrence dans les cas oii la
philosophie, la psychiatrie et le droit interagissent –
par exemple, en ce qui conceme les consultations cli-
niques de psychiatrie ayant pour objet essentiel des
questions d’6thique. Deuximement, la comparaison
entre ces concepts provenant de diff~rents domainea
nous donne un important aperqu de leur nature ainsi
que de leur r6le; elle rend 6galement possible un
usage plus prdcis conduisant A un 61argissement ou
un r6trdcissement de leur contenu et de leur applica-
tion. Troisimement, une personne ceuvrant dans un
milieu transdisciplinaire peut 6viter d’etre entran~e
par des faux-amis vers des hypotheses trompeuses si
elle sait reconnaltre les diff6rents sens que peut
prendre un meme mot lorsqu’il est utilis6 dans des
domaines diff6rents. Quatrimement, les objectifs
poursuivis par la d6finition et l’utilisation de ces
concepts, particulirement la protection des per-
sonnes auxquelles ils s’appliquent, ne peuvent etre
atteints que si le r6le de chacun est clairement 6tabli
tant A l’intdrieur de chaque domalne que dans leurs
interactions. L’auteure conclut qu’en pratique –
plus particulilrement en droit, en psychiatrie et dans
l’application des notions d’dthique –
on doit d6finir
et utiliser ces concepts de faqon A promouvoir le res-
pect de la personne, sans dgard a ses caract6ristiques
et surtout sans nier ce respect. Ceci exige, tout
d’abord, que l’on considsre la personne et ses carac-
tdristiques s6par6ment de ses d6cisions et leurs
caractdristiques et, ensuite, que l’on respecte ses
dacisions Is moins que le contraire ne soit clalrement
justifi6.
* Gale Professor of Law, Professor Faculty of Medicine, Director Centre for Medicine, Ethics
and Law, McGill University. This article is dedicated, with deep gratitude, to Professor Paul-Andr6
Cr6peau, O.C., Q.C., whose personal guidance and pioneering work in the field of medical law
have caused many of us, including me, to make this area the focus of our academic endeavours.
An initial version of this text was delivered as the Kenneth G. Gray Memorial Lecture for the
Canadian Psychiatric Association at its 37th Annual Meeting, “The Human Dimensions of Psychi-
atry”, held in London, Ontario, in September 1987. The author thanks the Association for its sup-
port and the EJLB Foundation, which, in providing funding for the “Program in Psychiatry, Ethics
and Law” at the McGill Centre for Medicine, Ethics and Law, also supported this research.
McGill Law Journal 1994
Revue de droit de McGill
To be cited as: (1994) 39 McGill L.J. 179
Mode de r6f6rence: (1994) 39 R.D. McGill 179
McGILL LAW JOURNAL
(Vol. 39
Synopsis
I.
Introduction
A. Words As “Tools of Trade”
B. Discretion in Decision-Making
C. The Decision-Making Process
II. The Concepts
A. Autonomy and Self-Determination
1. What Is Autonomy and What Is Self-Determination?
2. What Is the Relationship between Autonomy and Other
Person-Protecting Concepts?
a.
b.
c. Privacy
Informed Consent
Inviolability
3. What Are the Dangers of Abuse of a Concept of Autonomy?
B. Competence
1. What Is Competence?
2. What Is the Relationship between Competence and
Self-Determination?
3. What Is the Relationship between Competence and
Autonomy?
C. Voluntariness
1. What Is Voluntariness?
2. What Is the Relationship between Voluntariness and
Self-Determination, and between Voluntariness and
Autonomy?
3. What Is the Relationship between Voluntariness and
Competence?
M. Conclusion
1.
Introduction
For some time now, I have been hearing noises ranging from rumblings to
thunder claps that the practice of psychiatry is becoming impossible because of
the application of law. One psychiatric resident told me that she was thinking
of leaving psychiatry because it seemed too difficult –
not the profession itself,
but because of the intervention of law.
I suggest, however, that psychiatry and law are essential and complemen-
tary to each other, and can and must be integrated. Both have a common aim
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the relief of suffering. But, in some cases, they may see this aim as being best
–
achieved by different means, which are not always compatible. We must build
bridges between the two disciplines, and that canonly be done if they under-
stand each other. Understanding requires use of a common language in terms of
content, not just in terms of terminology. In order to achieve such understand-
ing, we need to explore whether hidden differences in language could be block-
ing its realization. This paper examines four concepts – -autonomy,
self-
determination, competence and voluntariness – which are often explored in
philosophy, including the sub-discipline of ethics, and which govern decision-
making in psychiatry and law, in an effort to determine their content in each dis-
cipline and whether it differs from one to the other. But before starting this
examination, I would like to address, very briefly, three preliminary matters, all
of which are characteristic of and relevant to philosophy, psychiatry and law.
These considerations involve: words as tools of trade; discretion in decision-
making; and the need to identify the essential requirements for an acceptable
decision-making process.
A. Words As “Tools of Trade”
Words are the “tools of trade” of philosophy, psychiatry and law.
Words can be used to involve oneself and one’s discipline in a situation or
to distance oneself and one’s discipline from a situation. Words can be used to
attach emotionally to a situation –
or to detach emo-
tionally from a situation, that is, to disengage, or to dis-identify from, which
does not always mean to become uninvolved’in, the situation. One can usefully
compare being uninterested, that is, not involved; disinterested, that is,
involved, but not emotionally involved; and interested, that is, emotionally
involved. Each of these concepts is of relevance to philosophy (in particular,
ethics), psychiatry and law.
to become involved –
The use of words may be just descriptive or communicative, or their use
can be regarded as in the nature of a “verbal act”. The use of words in philos-
ophy, psychiatry and law is often of the latter nature. The difference between the
two uses of words envisaged here can be summarized as the difference between
“talking about” psychiatry and “doing” psychiatry –
for example, practising
psychoanalysis, or “talking about” law and “doing” law –
for example, render-
ing a judgement. The use of words as “verbal acts” is usually not neutral, in the
sense that one seeks an outcome, decision or change through.their use, not sim-
ply a discussion.
The distinction between “talking about” and “doing” is of interest with
respect to the recent major development of the field of applied ethics, in partic-
ular, clinical ethics, of which psychiatric ethics is an important part. Applied
ethics can be regarded as “doing” philosophy as compared with the traditional
pastime of “talking about” philosophy.
Moreover, “doing” philosophy –
is not neutral or
detached, in the sense that no identified people are involved or affected, as is
true for much theoretical philosophy, which is neutral in this sense,. at least on
applied ethics –
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a direct and immediate basis. This change gives philosophy a common charac-
teristic with law and psychiatry, the lack of which used to be a distinguishing
feature of philosophy as compared with law and psychiatry. There is still debate,
in some circles, as to whether or not the evolution of applied ethics is a good
development for philosophy.
The use of words, whether descriptively or as “verbal acts”, can be a means
of taking control and, therefore, of taking power. One may, through the appli-
cation of descriptive words, define a matter into one’s orbit of control and take
power as a result, for example, by both professionalizing it, in general, and
bringing it within a certain professional domain, in particular.
B. Discretion in Decision-Making
Autonomy, self-determination, voluntariness and competence may all be
discretionary concepts in the sense that their content, or their application when
their content appears to be defined, has a large discretionary component. In turn,
the presence of such discretionary features in these concepts may allow them to
be used for the protection of discretionary, unarticulated, perhaps even unarticu-
lable factors.
This may be a valid function of these concepts. It means that they can be
used to allow decisions to be made which are justified in the particular circum-
stances, without setting a precedent which could inflict harm in the future. In
future cases, any such precedent can be avoided by a different exercise of the
discretion with respect to the relevant factor, for example, with respect to a find-
ing of whether or not a person is competent or his or her decision voluntary. But
the issue remains how these concepts are used in practice and how they ought
to be used. This is the issue explored in this paper. In almost all decision-making
situations, and certainly in those involving law, we operate from initial pre-
sumptions, although these are not always articulated. It is proposed that the ini-
tial presumption regarding the validity of persons’ decisions concerning them-
selves (for example, regarding medical treatment), should be like those govern-
ing sanity or competency, where one presumes a person sane or competent, res-
pectively, until the contrary is proven. In other words, the presumption should
be that persons’ decisions concerning themselves are valid and persons wanting
to override such decisions should have the burden of proving that they are jus-
tified in doing so.
Use of the concepts of autonomy, self-determination, competence and vol-
untariness allows either the application or the exclusion of other principles and
concepts to the decision-making of the person to whom they are applied. They
can be regarded as “gate-keeping” concepts. When the requirements of these
concepts are fulfilled with respect to a given person, other concepts that can be
activated include liberty, justice, fairness, and respect for persons and their
rights to inviolability, privacy and confidentiality, to list only some possibilities.
In contrast, when the concepts of autonomy, self-determination, competence and
voluntariness are held not to be fulfilled with respect to a given person, yet other
principles and concepts can dominate in the decision-making. These include
paternalism, protection and beneficence, but again include justice and fairness.
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The presence of the latter two features in both cases, that is, regardless of
whether or not the concepts of autonomy, self-determination, competence and
voluntariness are operative, provides an important insight. What constitutes jus-
tice, for example, can vary, not only with the circumstances of a given situation,
but also with the person involved in it. It would be unjust to characterize a com-
petent person as incompetent in order, for instance, to override the person’s
decisions. But one may be acting justly (or at least more justly’) towards a per-
son by holding him or her to be incompetent when this is clearly the case, and
unjustly (or less justly) by ignoring the incompetence or acting on a fagade of
competence. It should also be noted that the decision concerning whether or not
the discretionary content concepts of autonomy, self-determination and volun-
tariness are applicable depends upon whether the person is held to be competent
or incompetent, which likewise involves a concept and decision of discretionary
content. In one sense, therefore, competence can be regarded as the “gate-
keeper” of the “gate-keeping” concepts.
It is also possible that, through their discretionary content, the concepts of
autonomy, self-determination, voluntariness and competence allow the intro-
duction of non-cognitive factors into the decision-making situation. These fac-
tors could include examined or unexamined emotional reactions to the situation
from which decision-making arises, or intuitive responses to the situation.
We need to “unpack” the concepts of autonomy, self-determination, volun-
tariness and competence to see how we use them in, and to affect, decision-
making. In philosophy there has been much talk about these concepts, but only
very recently, with the development of applied ethics, has there been any direct,
practical use of them. It is interesting that in both law and psychiatry, in contrast
to philosophy, we have constantly used these notions – both descriptively
(“talking about” law and psychiatry) and prescriptively (“doing” law and psy-
chiatry) – but have had little in-depth analysis of their contents or definition
of their exact nature. For example, most psychiatrists believe that they know
what competency is, but cannot readily define it when asked to do so. This may
seem surprising in view of the extensive and still evolving literature dealing
with competence, especially in the area of psychiatry and law.2 But a distinction
needs to be made here between definition of competence and criteria for the
determination of competence. The literature deals with the latter, not usually
‘It is interesting to consider whether justice is a digital or binary concept (that is, it is either pres-
ent or absent), or an analogue concept (that is, there can be degrees of justice and injustice). For
a discussion see M.A. Somerville, “Justice across the Generations”, Social Science & Medicine
1989; 29:385-394.
2See e.g. K.C. Glass, Elderly Persons and Decision-Making in a Medical Context: Challenging
Canadian Law (Ph.D. Thesis, Faculty of Law, McGill University, March 1992); G. Sharpe, The
Law and Medicine in Canada, 2d ed. (Toronto: Butterworths, 1987) at 394-406; D.N.Weisstub,
Law and Psychiatry in the Canadian Context (New York: Pergamon Press, 1980) at 175-253.
3The distinction being made here can be compared with that made between the definition of
death, which is generally not undertaken in law, and the definition of criteria for the determination
of death, which is. See Law Reform Commission of Canada, Criteria for the Determination of
Death (Working Paper No. 23) (Ottawa: Supply & Services Canada, 1979); Law Reform Commis-
sion of Canada, Criteria for the Determination of Death (Report No. 15) (Ottawa: Supply & Ser-
vices Canada, 1981).
McGILL LAW JOURNAL
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the former, although it is true that exploration of criteria for the determination
of competence necessarily, but indirectly, throws light on the definition of com-
petence.
It may be, indeed it is proposed that it is likely, that psychiatrists have dif-
ficulty defining competence itself, because there are intuitive and other non-
rational elements in the decision-making concerning the presence or absence of
competency. Such elements should not, indeed must not, be excluded; but
decision-making in which such unconscious components play a major role
needs safeguarding. This need is also demonstrated by studies which show that
there is a value judgement and other subjective elements in decisions that deter-
mine competency. It was found, in one such study, that the more serious the out-
come of a person’s decision in terms of its being a threat to the person’s life or
health, and the more it differed from what the psychiatrist thought he or she
would decide in the same circumstances, the more likely it was that the person
would be adjudged incompetent. The effect of such a determination is to take
decision-making power away from the person, and to give control over the per-
son to someone else.’ This could be someone whom the psychiatrist is able to
influence more than the person or, even, in some cases, at least in the past, the
treating psychiatrist, himself or herself.
Exploring the content and definition of these four concepts governing
namely, autonomy, self-
decision-making in philosophy, psychiatry and law –
determination, competence and voluntariness –
is not a neutral activity. To the
extent that it results in trying to define these concepts comprehensively and, as
a result, has the effect of tying them down, they could lose their ability to func-
tion as discretionary mechanisms, which may be their most important function.
This is yet another example of the dilemma faced constantly by law: how to bal-
ance certainty with flexibility. We tend to be uncomfortable with identified
uncertainty (in this case, identified uncertainty in the definition and application
of these concepis), but not with the very same uncertainty when it is not iden-
tified. Perhaps one of our tasks is to train ourselves to live more comfortably
with a higher degree of identified uncertainty, when doing so will be more ben-
eficial than will either falling to identify uncertainty, or, having identified uncer-
tainty, seeking certainty.
Concepts such as autonomy and its companions are like icebergs, in that
only the tips are visible. There is a need to explore the submerged parts of the
complex functioning of these concepts: how they function unconsciously and
symbolically, as well as consciously, with respect to both individuals and soci-
ety. The increased awareness of the nature of these concepts that will result will
not necessarily mean that we will want to use them any differently. We may
wish and need to retain, for example, the ability of these concepts to function
in a discretionary manner. But we will be choosing to allow this; rather than
Journal of Psychiatry 1977; 134:279-283, at 283.
4L.H. Roth, A. Meisl & C.W. Lidz, “Tests of Competency to Consent to Treatment”, American
5M.A. Somerville, “Determinations of Competence as a Mechanism for Control of Persons” in
D. Greig & E. Berah, eds., Civil Rights in Psychiatry, Psychology and Law, Proceedings of the 6th
Annual Congress of the Australian & New Zealand Association of Psychiatry, Psychology and Law
(Melbourne: Australian & New Zealand Association of Psychiatry, Psychology and Law, 1985) 37.
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having it occur because we have not identified that we are dealing with an “ice-
berg concept” –
a concept that has important functions at more than just the
conscious level.
It should also be kept in mind that we may, in some circumstances, choose
to have uncertainty present, for instance, through choosing decision-making
mechanisms that operate more on the basis of chance than choice. In summary,
there is a difference, first, between uncertainty being present and its being iden-
tified; and second, between choosing to have uncertainty present and its being
unavoidably present.
C. The Decision-Making Process
Finally, the need to identify the essential requirements of the decision-
making process used in philosophy, psychiatry or law will only be mentioned
here,. but must be recognized.
Form is no mere formality and the processes we use, particularly when
faced with uncertainty as to the substantive principles which should be applied,
which is often the case with issues presented at the intersections of philosophy,
psychiatry and law, can have a major impact on decision outcomes.
Law has by far the most formal decision-making processes of the three dis-
ciplines and the best articulated procedural rules. Among the most important of
these are those of natural justice, which require an impartial decision-maker and
establish the right of all interested parties to be heard. Such rules have become
increasingly relevant to medicine and, therefore, to psychiatry. For example,
when approval of an ethics committee is required before research involving
human subjects may be carried out, these rules and others are applicable to the
functioning of the ethics committee, although this is often not recognized unless
the decision of the committee is challenged in some manner. Much less formal
rules are also relevant. For example, whether records of decisions, including
those taken by committees, are kept can influence a particular decision before
the committee –
it is possible that some persons would decide differently
depending upon whether or not a record were kept. Keeping or not keeping rec-
ords can also influence future decisions through either the availability or
unavailability of a precedent.
II. The Concepts
I now wish to attempt to define the content of each of the concepts of
autonomy, self-determination, competence and voluntariness. This will be done,
inpart, by comparing and contrasting these concepts. Both negative and posi-
tive definitions of these concepts are relevant: what is not regarded, for instance,
as self-determination can tell us much about what it is, and vice versa.
A. Autonomy and Self-Determination
1. What Is Autonomy and What Is Self-Determination?
In law, the terms “autonomy” and “self-determination” are used inter-
changeably, although very frequently there is reference to both concepts, usu-
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ally in the context of rights to autonomy and self-determination. According to
the rules of legal construction against redundancy (that is, if two terms are used
instead of one, both are assumed to be necessary, neither being superfluous),
this would indicate that the two terms have different meanings.
The issue is: What are these meanings and how are they relevant to the
law? One possibility is that the term “self-determination” might refer to the con-
cept of a person’s ability to express his or her wishes; that is, the person has the
ability simply to say “yes” or “no” to some proposal, and saying “yes” or “no”
constitutes a decision for the purposes of the law. Under such an approach,
incompetent persons could be self-determining, because, despite their incompe-
tence, they may be able to respond positively or negatively when asked to make
a decision. This is to propose that self-determination is a dispositional capacity:
if a person can do “x” (say “yes” or “no”), then he or she is “y” (self-
determining), which is to rely on a behaviourist theory of mind. Under such an
approach, the decisions -of incompetent persons could not be disregarded on the
basis that the persons were not self-determining. However, this is not to say that
the decision of an incompetent, self-determining person could not be overrid-
den. It could be, but only with justification. The burden of proof of such justi-
fication (for instance, avoidance of harm) would be on the person seeking to
rely on it. This means that in cases of equal doubt as to whether or not a jus-
tification applies for overriding an incompetent person’s decision, the general
rule –
that all persons’ decisions must be respected – would prevail. For
example, when an incompetent person refuses medical treatment and there is
equal doubt as to whether the harm avoided by undertaking the proposed inter-
vention on the person is sufficiently serious, or whether the benefits and poten-
tial benefits outweigh the harms and risks of the proposed intervention, overrid-
ing the incompetent person’s refusal would not be justified.
One important effect of adopting an approach that deals with the issues of
competence and self-determination separately, as suggested above, is that it
would require that the wishes of incompetent but self-determining persons be
respected, unless there were good reason to override them. Such an approach is
most person-respecting. It is also likely to assist in overcoming some of the very
real dangers that exist in labelling persons incompetent and, therefore, non-self-
determining. These include, first, that this labelling either is taken to indicate
global incompetence of the person, which may be inaccurate, or, alternatively,
it is simply treated as having a global effect of rendering the person incompetent
for all purposes, which leads to the same outcome. A person may be incompe-
tent in one respect and competent in others. A second danger is. that labelling
a person as incompetent is usually taken to indicate that the person need no
longer be consulted or have his or her wishes taken into account. This can lead
to the brutal disregard of such a person’s wishes in circumstances where they
should at least be taken into account, if not respected. An effect of such attitudes
and conduct is the de-personalization and de-humanization of incompetent per-
sons.
If self-determination is defined as above, but autonomy requires compe-
tence, then self-determination is a concept with less exacting requirements than
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autonomy. Conversely, however, self-determination may be defined as a con-
cept with more exacting requirements than autonomy. This position is reflected
in another possible approach to the distinction between autonomy and self-
determination, which is that autonomy does not require for its exercise that “a
self’ be present, whereas self-determination does.
What would constitute “a self’ for the purposes of a person being able to
be self-determined? Must there be some minimal presence of the person? If so,
what would constitute this? One issue raised here is whether the concept of per-
son and that of self-determination are linked. If they are, and the concepts of
autonomy and person are linked, then the concept of self-determination and that
of autonomy are necessarily linked. Indeed, they may become synonymous,
although one could argue that autonomy refers to the capacity for self-
determination, which can be present without it being exercised, whereas self-
determination refers to the exercise of this capacity. If only autonomous beings
are considered to be persons, and the definition of autonomy is a “full” or
“packed” one, then a “full” or “packed” definition of person will result. This
represents the philosophical approach, which also uses autonomy as the marker
of personhood. Likewise, pursuant to such analysis, a minimalist definition of
autonomy would result in a minimalist definition of person. In other words, the
term “person” could be treated as more or less equivalent to that of “human
being”, which seems to be the approach of the law. This approach would also
result in a minimalist definition of what is required for the presence of-self and,
therefore, of self-determination, if the concepts of person and self are linked.
This could be to return to the content of the first approach to defining self-
determination discussed above, that persons are self-determining if they can say
“yes” or “no”. But here the content of the definition of self-determination is
made to depend on that of another concept, personhood.
According to some philosophers, the word “autonomous” should be used
to describe the decision of a free, self-realizing, self-directed agent (that is, the
person’s decisions are autonomous when they are authentic [“his” or “hers”] and
independent [his or her “own”]).6 These philosophers also make reference to
greater and lesser degrees of autonomy.7 To some extent, a value judgement is
involved in determining what constitutes greater or lesser degrees of autonomy,
because greater autonomy is said to be present when the person acts free of
unacceptable influences, including unacceptable intrinsic psychological influ-
ences, and determining what are acceptable and unacceptable influences is far
from value-free. It seems that according to this philosophical view, persons are
regarded as becoming more autonomous as they become more aware of what
influences them and are more psychologically able to decide whether or not to
allow this influence to operate (in a sense, they could be characterized as “psy-
chologically free”), and vice versa. This concept of autonomy is also value-
laden in at least two other respects. First, greater autonomy is regarded as a
“higher state of being”; second, it postulates a particular kind of person as being
most autonomous, namely, one who is self-aware, reflective and insightful. Per-
6G. Dworkin, “Autonomy and Behavior Control” (1976) 6 Hastings Center Report 23 at 24.
71bid.
McGILL LAW JOURNAL
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sons who are impulsive, act on instinct, or are emotionally influenced, and as
a result, are impetuous, are likely to be regarded as less autonomous. In other
words, persons whose cognitive functioning clearly dominates, as compared
with their emotional functioning, are likely to be regarded as more autonomous.
This would matter if certain rights or privileges were conditional on a person
being regarded as having a certain degree of autonomy, or even if being
regarded as less autonomous were in some way a detraction from the worth of
the person, or an implied or express derogatory statement about him or her.
In comparison with philosophy, the law has no definition of autonomy and,
as mentioned previously, tends to equate the concepts of autonomy and self-
determination. The law does, however, seek to establish the conditions in which
it is presumed or hoped that autonomy will be present or fostered, when it is
used to articulate and implement rights to autonomy and self-determination in
relation to decision-making. But what constitutes autonomy, itself,8 as compared
with a right to autonomy, is not defined in law. In practice, whether or not a per-
son is autonomous seems to be treated more as a question of fact than theory,
to be determined, if at all, on an individual case by case basis, usually by a court
as a passing reference to a given person’s state of mind. This is probably the sit-
uation because the determination of whether or not a person is autonomous is
not usually of direct relevance to the law, whereas the determination of a per-
son’s competence and the voluntariness of his or her decision-making are con-
sidered relevant. These are linked to autonomy in that they may reflect the pres-
ence or absence of autonomy in the philosophical sense. This is true because a
decision by an incompetent person may not be authentic (“his” or “hers”), and
one which is not voluntary is not likely to be regarded as independent (his or
her “own”). The issue for the law is at what level of lack of authenticity or inde-
pendence a person will be held to be incompetent or his or her decisions will
be regarded as involuntary, respectively. Persons and their decisions may well
be regarded as non-autonomous in the philosophical sense, before they or their
decisions are seen as incompetent or involuntary, respectively, by the law.
To the same effect, if the philosophical definition of an autonomous person
is one whose second order desires endorse his or her first order desires (that is,
he or she not only recognizes and acts on his or her desires, but likes being as
he or she is), it is possible that a person who is competent legally and whose
decisions are voluntary, but whose second order desires conflict with his or her
first order desires, is not fully autonomous philosophically.
2.
What Is the Relationship between Autonomy and Other Person-
Protecting Concepts?
a.
Informed Consent
It merits noting that autonomy is a purpose or aim of the doctrine of informed
consent, but not one of its elements. One might assume that if informed consent
8For discussion of the concept of autonomy, see below at 193-95. See also M.A. Somerville,
“Refusal of Medical Treatment in ‘Captive’ Circumstances” (1985) 63 Can. Bar Rev. 59.
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were being used in such a way that it inhibited rather than promoted autonomy,
this would be a relevant consideration in relation to the validity of the consent,
but this may not be true from a legal point of view. An example, in this regard,
is that of the psychological coping mechanism of denial. A patient can refuse
to be given information in order to be able to remain in a state of denial of his
or her illness or of its implications. Persons, however, need some minimal con-
sciousness of a matter in order to be able to suppress consciousness of that mat-
ter, so as to be in a state of denial concerning it.9 Are we promoting or reducing
autonomy, if we insist on informing the patient in order to obtain informed con-
sent? Does this depend on the extent of the information we insist on providing?
Can informed consent be present without informing? This is probably best
described as a situation for the application of the legal doctrine of waiver.
Waiver applies when the person with the right to be informed gives consent
(quaere informed consent) to not being informed, in circumstances in which the
person with a legal obligation to inform is ready, willing and able to do so, and
makes this known to the other person. Waiver can be regarded either as an
exception to requiring informed consent, or as allowing informed consent to be
obtained on the basis of less than the usually required scope of disclosure of
information. The latter may seem to present a contradiction in terms – how can
a person give informed consent if he or she is not informed?
The confusion arises because although information disclosure was the ini-
tial focus of the doctrine of informed consent, that doctrine is now much more
all-encompassing, nuanced and subtle in terms of what is sought to be achieved
through its use, and includes promotion of patient autonomy. In particular, the
patient’s autonomy could be promoted by accepting his or her waiver of the
right to be informed and treating the resulting consent as valid, that is, as ful-
filling the requirements of the doctrine of “informed” consent.” To the contrary,
there could be a detraction from the patient’s autonomy by refusing to accept
a consent given pursuant to a waiver of information. In short, waiver can be
regarded as another example of an exercise of autonomy by the patient, because
the patient chooses not to be informed. But whether or not a decision taken in
such circumstances should be regarded as an autonomous one depends upon
one’s definition of autonomy. This raises the interesting paradox, which will not
be explored here, that one could, through the same mechanism, simultaneously
promote a person’s autonomy and detract from the autonomy of his or her deci-
sions.
b.
Inviolability
The law speaks of a right to autonomy, that is, a right to determine what
happens to oneself in particular, to determine what is done with or to one’s body.
9See E.E. Shelp & M. Perl, “Denial in Clinical Medicine: A Reexamination of the Concept and
Its Significance”, Archives of Internal Medicine 1985; 145:697-699.
1Professor Jay Katz would disagree that this promotes autonomy (The Silent World of Doctor
and Patient (New York: Free Press, 1984) at 127). Katz’s concept of autonomy appears to be closer
to the philosophical concept (see text accompanying note 6), than the legal concept (such as it is)
or what is proposed here.
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This right overlaps with that to inviolability, which comprehends the right not
to be touched without one’s consent. The right to inviolability can also be
regarded as a negative-content expression of the right to autonomy. The latter
right also has positive content, for example, the right to demand to be touched.
Such a right exists, for instance, in Quebec by virtue of the fact that there is a
legal right to necessary medical care.” If this care were refused without justi-
fication, such as a reasonably unavoidable shortage of resources, it could be
demanded and obtained through legal action.
c. Privacy
The right to autonomy also encompasses a right to privacy. In fact, the
most famous development of this right in Anglo-American legal systems was in
the reverse order: United States’ courts interpreted the right to privacy as requir-
ing recognition of a person’s right to autonomy, in order to give adequate pro-
tection to the right to privacy. One of the landmark decisions in this regard is
Roe v. Wade,” in which the United States Supreme Court held that a “penum-
bra” right of privacy was to be found in the United States Constitution. The
Court held that this right required recognition of a right to autonomy, which, in
the circumstances of the case before the Court, allowed a woman to decide for
herself, during the first trimester of pregnancy, what should be done with respect
to her body. This meant that the State could not interfere with her decision not
to continue a pregnancy by undergoing an abortion. Such a privacy-autonomy
right is of negative content, that is, it is a “right against”. Positive content rights
of privacy, for example, the right to inspect and take a copy of one’s own med-
ical records 3 and have these corrected if they are in error,” are an implemen-
tation of a right to autonomy and of self-determination in yet another sense.
They allow one to exercise one’s ability to express one’s wishes and to have
them implemented when such implementation requires action on the part of
another. Both negative and positive content rights of privacy and autonomy
reflect and implement the rights of freedom and liberty. This is a “freedom
from” in the case of negative content rights of privacy, which are rights not to
be physically or mentally invaded. Such rights may be necessary conditions
precedent to autonomy and self-determination to the extent that these depend
upon the power to control the inputs to which one is subject. Positive content
rights of privacy contemplate “freedom to” do, or see, or change something,
which are also forms of control over what happens to one, and hence, are
closely related to autonomy and self-determination. Both forms of freedom may
also be related to autonomy in the broader philosophical sense described above,
in that persons who are free from unwanted interferences and free to act as they
see fit have at least the circumstances present in which their psychologically
free (that is, “their” authentic and “own” independent) decisions can be taken
and implemented. In short, autonomy, self-determination, liberty and freedom
“‘An Act Respecting Health Services and Social Services, R.S.Q. c. S-5., s. 4.
12410 U.S. 113 at 152-54 (1973).
13An Act Respecting Health Services and Social Services, supra note 11, s. 7.
14Privacy Act, R.S.C. 1985, c. P-21, s. 12(2)(a).
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have a common element, that of control of both what one does not want and
what one does want to happen to one.
3.
What Are the Dangers of Abuse of a Concept of Autonomy?
There would be danger in the law adopting the philosophical notion of
autonomy if this meant that only autonomous persons or autonomous decisions,
in the philosophical sense, needed to be respected. Promotion of a right to
autonomy is intended to be protective and promotive of a person’s liberty, free-
dom and rights to self-determination, that is, of the person’s right to decide what
should happen to himself or herself. But it could have the opposite effect for
those persons adjudged to be non-autonomous. These persons may be deprived
of their liberty, freedom and rights to self-determination on the basis of their
non-autonomous state, when they would not necessarily be deprived of these if
autonomy were irrelevant. In short, there is danger in promoting the adoption
of autonomy as a factor relevant to legal rights in relation to personal decision-
making, because this could result in the invasion of the human rights of, a lack
of respect for, and wrongful discrimination against, persons characterized as
non-autonomous.
This same phenomenon, namely, that a doctrine which is meant to promote
respect for persons or to protect them can be used to the opposite effect, can be
seen in relation to the doctrine of informed consent. This doctrine is meant to
protect patients from unwanted or unconsented to treatment, and requires that
the patient be informed of the nature and consequences, including material
risks, of the proposed treatment, of its alternatives, and of foregoing all treat-
ment. But the doctrine can also be used to deny treatment. This can occur when
it is argued that not enough is known about a treatment, such as an experimental
drug, for instance for AIDS, to allow the person to give an informed consent to
its use; or that it is impossible for a certain person’s consent to be sufficiently
free or voluntary and, therefore, that he or she is incapable of giving an
informed consent, such as when he or she is a prisoner. In short, the doctrine of
informed consent, which has a primary purpose of protecting persons from the
wrongful imposition of treatment, can, when stringently defined and applied in
a certain manner, also be used as a means of denying access to treatment. It is
interesting to contemplate, however, that such instances rarely occur in relation
to mentally ill persons, even though there are many new experimental psycho-
pharmacotherapeutic agents that offer such persons hope of vastly improved
treatment, and even though involuntarily hospitalized mentally ill persons can
be compared with prisoners, in some respects. The reason for this is that most
court cases involving the application of the doctrine of informed consent to
mentally ill persons concern the reliance by these persons on the doctrine in
order to have their refusals of treatment respected, when health care profession-
als regard this treatment as essential. These cases do not concern the use of the
doctrine by health care professionals to deny such persons’ claims to access to
treatment.
In the remainder of this paper, unless otherwise stated, a minimalist defi-
nition of both autonomy and self-determination are adopted.
McGILL LAW JOURNAL
[Vol. 39
B. Competence
1.
What Is Competence?
In law, the doctrine of competence has two limbs: legal and factual. Adult
persons are legally competent unless they are subject to a court order declaring
them incompetent. On the whole, factual competence, which is defined below,
is of much greater importance to health law than legal competence. In the dis-
cussion which follows, it is assumed that all persons are legally competent.
In law, only the decisions of factually competent persons are binding. Fac-
tual competence is defined by cognitive mental functioning. A person is func-
tionally, and therefore factually, competent if he or she has the capacity to
understand the nature and consequences of the proposed course of conduct.
Competence does not depend on rationality or rational decision outcomes. Irra-
tionality is only legally relevant in terms of voiding a person’s decisions if it
indicates a defect in cognitive functioning in the nature of a lack of capacity to
understand the information required to be disclosed. That is, at least in theory,
competence is judged according to a person’s cognitive capacity, and not on the
basis of the exercise of this per se, and therefore, not on the basis of the content
of the decision the person reaches. In practice, these latter features often play
a role in the determination of competence, because they can be used as evidence
indicating a lack of the necessary cognitive capacity.
At present, the law does not incorporate any separate or distinct concept of
emotional competence or incompetence. Emotional functioning is only relevant
to the law and its definition of competence if it affects cognitive functioning
and, hence, capacity for understanding. There are arguments both for and
against incorporating a concept of emotional incompetence into the law.’ The
dangers are those of abuse in that decisions which should not be overridden, will
be, on the basis of emotional incompetence. The benefit is that the decisions of
some seriously emotionally disturbed, but cognitively competent, persons could
be overridden when the decisions are far outside any range that could be con-
sidered “normal”. For instance, many paranoid persons may be cognitively
competent, but their paranoid delusions can dominate their decision-making,
sometimes with seriously harmful results. If an approach that took emotional
competence into account were to be adopted, strict safeguards would be needed.
In particular, the presence of emotional incompetence should not, in itself, jus-
tify overriding the decision of a cognitively competent person. The overriding
must be clearly justified, that is, necessary, in that no less invasive or restrictive
approach will suffice, serious harm is avoided, and the benefits and potential
benefits to the emotionally incompetent person clearly outweigh any harm and
risks of harm to him or her. The intervention of a court could also be required
as a safeguard in declaring cognitively competent persons emotionally incom-
petent in order to override their decisions concerning themselves.
The legal approach to competence does not function on a continuum, but
on a bi-polar model: a person is adjudged either competent or incompetent for
15 See Somerville, supra note 8 at 65ff.
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the purposes of law. In fact, however, all incompetent persons will not be
equally incompetent nor all competent persons equally competent. This can be
illustrated diagrammatically as follows:
x
Totally
incompetent
_x
Fully
competent
Legally incompetent
Legally competent
2.
What Is the Relationship between Competence and Self-Determination?
If the right of self-determination –
the right to have one’s decisions con-
cerning oneself respected –
depends on one’s, competency, then competence
acts as a condition precedent to the exercise of the right of self-determination.
Under such an approach, the contents of the concepts of competence and self-
determination are different, but related. On the one hand, determining compe-
tence involves an assessment of the person’s mental capacity, in terms of cog-
nitive functioning, for decision-making. On the other hand, the exercise of the
right of self-determination assumes, but does not demand, the exercise of that
capacity in decision-making, when it is found to be present. This means that the
irrational decision of a competent person will be respected and this respect will
be accorded on the basis of respect for that person’s right of self-determination.
In such a model, competence has a prescriptive function and self-determination
a descriptive role. In comparison, if self-determination does not depend on the
presence of competence, there is no necessary relationship between competence
and self-determination; they can be regarded as independent variables in a
decision-making context. Whether the concept of either self-determination or
competence functions prescriptively or descriptively will depend upon how it is
used. In law, competence tends, in practice, to be used prescriptively, and self-
determination descriptively. In short, in practice, the outcome in law tends to be
the same whether competence and self-determination are regarded as dependent
or independent variables, which means that it is difficult to determine the theo-
retical approach of the law to this question. Which theoretical approach is taken
becomes important when one theoretical base would give a certain outcome in
a given situation, and the other theoretical base a different outcome in the same
situation.
3.
What Is the Relationship between Competence and Autonomy?
The analysis outlined above can be applied directly to a second compari-
son, that of the concepts of competence and autonomy, if the concept of auton-
omy is regarded as being interchangeable with that of self-determination, which
is one possible definition of autonomy.
But, what is the relationship between competence and autonomy in the
philosophical sense described above? One can regard competence as the begin-
ning of a continuum which ends with “full autonomy”. But this philosophical
concept of full autonomy includes a great deal more than simply full and free
REVUE DE DROIT DE McGILL
[Vol. 39
capacity for cognitive functioning and even the exercise of this. It also contem-
plates full and free emotional and psychological functioning, in the sense that
a person’s decisions, in order to be regarded as fully autonomous, must be free
of what are classified, either by the person himself or herself, or sometimes by
others, as unacceptable influences on the person, including intrinsic ones. Con-
sequently, the continuum is better envisioned as a triangle rather than as a
straight line. The triangle, the apex of which is competence, represents a series
of factors overlying competence. It should be noted that legal competence can
exist prior to autonomy in the philosophical sense being present. As well, the
commencement of competence in the legal sense, and autonomy in the philo-
sophical sense can coincide, depending on the circumstances of the case. On the
other hand, it is not possible for autonomy in the philosophical sense to exist
prior to legal competence. However, if autonomy is defined only to require that
a person be able to express his or her wishes, that is, as equivalent to the least
demanding definition of self-determination, it would not be dependent on the
presence of competence and could precede its presence. The general scheme
contemplated here can be illustrated diagrammatically as follows:
Legal incompetence
Legal competence
x
Minimum
competence
“Minimalist”
autonomy or
self-determination
Minimum
“philosophical”
autonomy
x
Full
‘philosophical”
autonomy
Some authors, for example, Professor Jay Katz in The Silent World of Doc-
tor and Patient,6 have proposed that one can invade a person’s rights to privacy
and self-determination for the purpose of promoting autonomy. Promotion of
autonomy is seen as being undertaken, despite the invasion of autonomy
involved in the intervention, when one seeks to give the person every opportu-
nity or to help or even to force the person to achieve the fullest possible state
of psychological freedom of which he or she is capable in relation to decision-
making. For instance, when a patient refuses treatment and the refusal carries
a material risk of serious harm unaccompanied by any compensating benefits,
Katz, who is both a psychiatrist and a professor of law, argues in favour of
imposing “clinical conversation” on the patient for a limited time, in order to
ensure that the patient has the fullest possible perspective on the situation and
every opportunity to change his or her mind. It is obviously open to debate
whether this indeed promotes autonomy or infringes upon it, even in an overall
sense of whether this approach achieves the greatest net augmentation of auton-
omy as compared with a non-interventionist approach that simply respects the
competent patient’s refusal of treatment. It may well be that law would see it
as invading autonomy on the basis that it infringes the person’s rights in this
respect, whereas psychiatry would view it as promoting autonomy on the
16Supra note 10 at 141.
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LABELS VERSUS CONTENTS
grounds that it best responds to the person’s needs in this regard. This touches
on one of the differences between law and psychiatry: when there is conflict
between respecting a patient’s rights and needs, law tends to give priority to the
former, psychiatry to the latter.
C. Voluntariness
1. What Is Voluntariness?
Voluntariness requires that a person’s decision be the result of a free act of
his or her will; stated negatively, the decision must not be the result of coercion,
duress or undue influence. A voluntary decision is one that is willed, in the
sense of freely taken, by the decision-maker. An involuntary or non-voluntary
decision is one taken by, but against the will of, the decision-maker. An “avo-
luntary” decision is one taken in the absence of will, for example, in a state of
automatism.
The factors which have the potential to affect voluntariness can be classi-
fied as extrinsic or intrinsic. Holding a gun to a person’s head to make the per-
son agree to a certain course of action is a clear example of extrinsic coercion.
On the whole, these factors are easier to assess and to deal with than intrinsic
ones. Intrinsic factors, which could be regarded as coercive, include some psy-
chopathological states (for instance, obsessive disorders, megalomania or para-
noia) or drugs which affect a person’s psyche in a way that causes the person
to make a decision that otherwise he or she would not have made. The former
group of factors could be labelled “‘pure’
intrinsic coercion” and the latter
“‘mixed’ intrinsic coercion” and both can be compared with “extrinsic coer-
cion”. Again, one has a continuum and, again, the law must draw a line below
which coercion will not be regarded as being present and above which it will.
x
“Pure”
intrinsic
coercive
factors
I “I
I
“Mixed”
intrinsic
coercive
factors
I II
X
“Pure”
extrinsic
coercive
factors
No coercion in Law
Coercion in Law
This diagram indicates that “pure” intrinsic coercive factors will not in law
render a person’s decision involuntary and this is probably true. This does not
mean, however, that these factors are irrelevant in determining the legal validity
of a decision of a person subject to them. The factors which can be classified
as “pure” intrinsic coercion may, for example, also indicate incompetence, or
could block sufficient understanding by a person of the information required to
be given to him or her (for instance, a person whose informed consent is
required), with the effect of rendering the decision invalid in law on the basis
of lack of information. That is, it is not sufficient in law for the information to
be delivered, it must be received. The test in this latter regard, it is proposed,
is whether the person legally required to inform the other person would, as a
McGILL LAW JOURNAL
(Vol. 39
reasonable person giving information, believe that the recipient of the informa-
tion apparently understood it. 7 If the answer to this enquiry is negative, any
consent of the person receiving the information is legally defective because
there has not been a legally adequate reception of the information. In summary,
for legally valid decision-making in situations where the legal validity of the
decision-making depends, in part, on the provision of information, the law has
minimum requirements that must be fulfilled not only with respect to giving
information, but also with respect to receiving it.”8
In law, extrinsic coercive factors are more likely than intrinsic ones to be
regarded as voiding a decision on the grounds of lack of voluntariness. The law
has a pervasive doctrine of “take your victims as you find them”, which means
that defendants take the risk that their wrongdoing will cause much greater than
expected damage, because of the plaintiff’s personal susceptibilities or circum-
stances. In such cases, defendants must pay the full extent of the damage, not
just that which was reasonably foreseeable, although reasonable foreseeability,
to which this approach is an exception, is the general principle governing both
the imposition and limits of legal liability. In assessing the effect of intrinsic
coercive factors on voluntariness, particularly those factors which are not gen-
erated by an identified external cause (one could compare, in this regard, certain
psychopathological states which fulfil the criteria for an intrinsic coercive fac-
tor, with similar states induced by drugs: the latter are much more likely than
the former to be held to give rise to a lack of voluntariness), the maxim referred
to above tends to adopt the form of “take yourself as you find yourself’. That
is, plaintiffs will have greater difficulty in establishing that “pure” intrinsic coer-
cion should be regarded by the law as invalidating decision-making, than they
will other forms of coercion.
Finally, it is worth noting that, in the case of both extrinsic and intrinsic
factors influencing decision-making, it is a value judgement to decide when a
factor reaches a degree of influence such that it becomes unacceptable in the
sense of rendering a decision involuntary through coercion, duress or undue
influence. This is true, in particular, in deciding, as the diagram indicates will
be necessary, which “mixed” intrinsic factors amount to coercion and which do
not.
2.
What Is the Relationship between Voluntariness and Self-Determination,
and between Voluntariness and Autonomy?
The presence of voluntariness indicates that a decision is indeed self-
determined, not other-determined. The absence of voluntariness indicates the
opposite. Consequently, voluntariness can be regarded as a marker of, or test
for, self-determination in decision-making. Stated another way, an ability to be
self-determining is related to an ability to make voluntary choices. On the other
hand, it is the self who still decides even when a decision is involuntary, for
17M.A. Somerville, “Structuring the Issues in Informed Consent” (1981) 26 McGill L.J. 740 at
776ff.
181bid. at 753ff.
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example, subject to coercion. Pursuant to such analysis, self-determination and
voluntariness are not linked; rather, they are independent variables.
Voluntariness and autonomy, in the philosophical sense described, are
directly related. The more autonomous a decision is, also the more voluntary it
becomes. One can thus adopt a continuum of voluntariness from involuntary to
avoluntary to voluntary, which parallels the continuums described previously
both for autonomy and competence. In fact, such a continuum exists in relation
to voluntariness, but again only one point on it is of relevance to the law: that
below which a person’s decision will be characterized as involuntary and above
which it will be treated as voluntary, and in neither case need the decision be
at an end-point to be so characterized. This can be represented diagrammatically
as follows:
X
Involuntary
against will
I
Avoluntary
without will
I I
Voluntary decision
in law
Involuntary decision
in law
X
Voluntary
with will
As this diagram indicates, some avoluntary decisions will be characterized
in law as involuntary and others as voluntary. Again, a value judgement is
involved in making such determinations.
3.
What Is the Relationship between Voluntariness and Competence?
The relationship between voluntariness and competence is similar to one
version of that between voluntariness and self-determination: the two are inde-
pendent variables, that is, they are not linked. A competent person can make a
voluntary or involuntary decision, although whether he or she could make an
avoluntary one is an interesting question. Does the absence of exercise of will
necessarily mean that the person is incompetent, that is, that competent persons
cannot, by definition, act without will? The answer, at least in a technical legal
sense, is probably that competent persons can act in an avoluntary manner. This
is true because competence requires only the presence of the capacity to under-
stand the information which must be provided in relation to any given decision.
It does not require the exercise of that capacity. However, the cases in which
competent persons do something with no act of will would need to be carefully
identified. For instance, a person’s refusal to make a decision is not such an
example, because a refusal to make a decision is in itself an exercise of will. In
fact, this is an option resorted to, in particular, by aged persons in relation to
medical decision-making. Moreover, the distinction between acts and omis-
sions could be relevant here. A decision outcome which results from an omis-
sion to decide is more likely to be characterized as avoluntary than one where
the person acts, whether verbally or otherwise, to render the decision.
19R.M. Ratzan, “Cautiousness, Risk, and Informed Consent in Clinical Geriatrics”, Clinical
Research 1982; 30:345-353, at 351.
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Clearly, incompetent persons can make involuntary or avoluntary deci-
sions, but can they make voluntary ones? The answer is clearly yes; it is their
competence or understanding which is defective, not their ability to will or want
the decision outcome which they express. These decisions can be voluntary, but
they are not competent. It is important to recognize such factors, because rec-
ognizing that an incompetent person’s decision is voluntary may make us more
ready than otherwise to respect it in circumstances where this is appropriate –
that is, where there is no adequate justification for overriding it. A requirement
that we must take into account the wishes of incompetent persons with respect
to their sexual sterilization would provide a good example in this regard. Too
often the decisions of incompetent persons are regarded as being totally defec-
tive. We might develop a different attitude to such decisions if we recognize that
some persons’ decisions can be defective because of involuntariness, although
these persons are competent, and other persons’ decisions can be voluntary, but
defective because of incompetence. Equally, in both cases there is a single
defect present, although a different one. In a sense, the decision of a person in
one of these categories is no more defective than that of a person in the other
category. It could be important to recognize this in order to obtain a balanced
perspective on defects in decision-making and to determine what consequences,
whether legal or other, should be attributed to these defects.
MI. Conclusion
Exploring and comparing the decision-making concepts of autonomy, self-
determination, competence and voluntariness in philosophy, psychiatry and law
provides insights that can help us to decide both which decisions we should
respect and which decisions we are justified in not respecting. However, just as
we need to distinguish the sin from the sinner, we must distinguish the decision
from the decision-maker. This is particularly important in ensuring respect for
all persons. There may be a tendency only to respect those persons whose deci-
sions we respect; that is, respect is generated from respect for a decision and
flows to the person who made it. The converse should be true. We must respect
all persons, whether or not we can respect their decisions in any given situation.
This leads to a final point. We need to identify the prima facie presumption
from which we will work. It is proposed that it should be that the decisions of
all persons should be respected, and that exceptions to this principle must be
clearly justified. These exceptions can be a range of factors, one of which could
be that the person is incompetent. But, if such a person’s decisions were not
harmful to him or her, or seriously harmful to others, incompetence by itself
would be an insufficient justification for ignoring or overriding them. The alter-
native primafacie presumption, and the one that may be in use currently, is that
the decisions of all competent (or self-determining, or autonomous) persons
should be respected, and that exceptions to this principle must be clearly justi-
fied. This means that incompetent (or non-self-determining, or non-autonomous)
persons are classified as separate from other persons, with the result that there
is no prima facie presumption that their decisions or wishes need to be
respected, and exceptions justified. Even more importantly, this approach means
that the decisions or wishes of incompetent persons need not even be taken into
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199
account. This distinction between “not respecting” and “not taking into
account” is important. There is a difference between not respecting the decision
or wishes of a person because these were simply ignored, and not respecting
such a decision or wishes after these have been taken into account. The latter
is more person-respecting. It is proposed that it should be decisions, not persons,
which are classified,, if we are not to run the risk of wrongfully discriminating
against those whom we regard as less competent than ourselves and, therefore,
as less worthy of respect for their rights of self-determination and more needy
of protection. The first of the presumptions outlined above distinguishes
between, if anything, decisions, not persons; the second distinguishes between
persons. By focusing on differences between decisions and not on the persons
who make them, we are more likely to retain our respect for all persons.
