The Consumer Protection Model of Decisional Capacity Evaluation

Abstract

We argue that valid informed consent and the corresponding practice of decisional capacity evaluation (DCE) are essential to protecting the autonomy of healthcare consumers. We defend the practice of DCE from critics that contend they are unjustifiable affronts to healthcare consumer autonomy. Many philosophers in the liberal tradition hold that competent adults should be in control of medical decisions regarding their own medical care. However, this commitment elides an important legal and clinical distinction between competence to make a decision and decisional capacity. We argue that when a globally competent individual does not pass an appropriately conducted DCE regarding a particular medical decision, then that medical decision should be made by an appropriately selected surrogate decision maker. Our argument defends a consumer protection model of healthcare transaction that warrants the practice of DCEs.

Keywords: liberty, paternalism, decisional capacity, competence, informed consent