The usual conclusion that the capacity required should vary in proportion to the severity of the consequences requires several limitations. First, the treatment of autonomy as primarily by law limits the application of this proportionality to persons with low capacity. Second, the most frequently advanced justification for proportionality, which balances autonomy and well-being, does not reflect the status accorded by law to patient autonomy. An alternative that reflects this status implies that current practice should change. Third, ethical considerations and the widespread desire to limit the circumstances in which expressed wishes are not taken into account further limit the degree of capacity required for legal competence to be proportionate to the seriousness of the patient`s decision. The right to equal recognition of all human beings before the law is a long-standing legal principle. Nevertheless, people with intellectual disabilities (including people with learning disabilities, acquired brain injuries and dementia) are often deprived of their right to equal treatment before the law because disability is included in the law and society. Professor Rosie Harding`s research, which includes the Everyday Decisions Project and the follow-up study Supported Will-Making, examines how social law conceptions of „legal“ and „mental“ capacity interact in the daily lives of people with developmental disabilities and have contributed to an emerging reform of law-relevant day-to-day decision-making support. Competence should not be confused with credibility or reliability. At the stage where the question of jurisdiction is decided, judges do not decide whether a witness is telling the truth or will testify truthfully.
Issues of credibility and reliability relate to the weight of evidence and not to the competence of the witness. People with impaired mental capacity are often deprived of all their rights to legal capacity because of their decision-making capacity. Legal frameworks such as „guardianship“ prevent people from making decisions for themselves, even if they have the mental capacity to make a particular decision. Guardianship laws still exist in many countries around the world. The Mental Capacity Act 2005 assesses capacity on a specific decision-making basis and uses a „functional test“ to determine whether a person with a mental or brain impairment has the capacity to make a decision. If the person fails the functional test, another person can make a decision in their „best interest.“ Recently, the Legal Affairs Committee has proposed changes to English law with respect to decisions made in the best interest, as the current „best interest“ approach does not give sufficient priority to the wishes and feelings of the person at the centre of the decision. Prosecutors should also recognize that the competence of a witness is a different matter than the mental capacity of a witness. Further information can be found in the chapter entitled „Guidelines for the prosecution of crimes against older persons and victims and witnesses with mental health and/or learning disabilities“.
If you are a person with a disability that affects your decision-making ability, we would also love to hear from you. Please consider talking to us as part of our research. We would like to hear about your experiences in exercising legal capacity and when you need help in decision-making. This does not tell us what „legal capacity“ is, but only that everyone (including persons with disabilities who impair their ability to think and learn) has it. Article 12 of the UN Convention on the Rights of Persons with Disabilities (UNCRPD) reaffirms the right of persons with disabilities to „equal treatment before the law“. These include the „right to recognition everywhere before the law“ (Article 12(1)) and the recognition that „persons with disabilities have the same legal capacity as others in all spheres of life“ (Article 12(2)). The CRPD also requires States Parties (i.e. Countries that have signed and ratified the Convention, including the United Kingdom) „Ensure that persons with disabilities have access to the assistance they need in exercising their legal capacity“ (Article 12(3)) and „Safeguards for the prevention of abuse“, which „ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person free from conflicts of interest; and undue influence, are proportionate and appropriate to the circumstances of the person, apply as soon as possible and are subject to regular monitoring by a competent, independent and impartial or judicial authority“ (Article 12(4)). In its first general comment, the Committee on the Rights of Persons with Disabilities clarified how article 12 should be interpreted. The law of 25. In June 1910, the GAA was again amended to give the Minister of the Interior the power to sell the lands of deceased assignees or to issue patents and fees to legal heirs. This decision is based on a decision by the Minister of the Interior as to whether the legal heirs are „competent“ or „incompetent“ to manage their own affairs.
If a patient refuses medical treatment, the law in the United Kingdom, the United States and Canada requires that his or her stated wishes be respected, unless it can be demonstrated that he or she is not legally capable.1-9 Legal competence is specific to the task at hand.10 It requires mental faculties to reason and reflect,15,16 to have appropriate values and goals,17 to appreciate the person`s situation,18,19 to understand the information given to a person,20 and to communicate a choice.15 These skills may change over time, so that medical procedures, that require consent over longer periods of time, require repeated assessments.21 The law recognizes that mental performance is a continuous quality, which is greater or lesser great.22 The declaration of competence must be interpreted holistically. For example, A1e`s requirement to respect diversity and act in a fair and inclusive manner permeates all areas of work and underpins all competencies of the statement. When reviewing an evidentiary record, it is important to name all witnesses whose competence could be questioned at trial and to take them into account in deciding whether there is a realistic prospect of conviction. The Crown Attorneys` Code directs prosecutors to consider whether evidence can be used and whether it is reliable (subsection 4.6). There are specific guidelines for medical professionals on how to use Gillick`s skill – see case history and legislation. Support for the exercise of legal capacity can be provided in different ways, some on the basis of simplified communication, others on the appointment of persons to assist in decision-making, such as lawyers, MPs and lawyers. Support for the exercise of legal capacity is a human right protected by the CRPD. Governments have a responsibility to provide access to support. In general, a person in the United States has the capacity or competence to make the decision to enter into a contract if he or she is able to understand and appreciate all of the following: (a) Rights, duties, and responsibilities created by or affected by the decision.
