Constructing Competence: Formulating Standards of Legal Competence to Make Medical Decisions

52 Pages Posted: 30 Apr 2008

See all articles by Jessica Wilen Berg

Jessica Wilen Berg

Case Western Reserve University School of Law

Date Written: 1996

Abstract

A young woman twenty-six weeks pregnant and dying from cancer lies heavily sedated and attached to a respirator. Is she competent to determine what life-prolonging measures should be taken, or to consent to an emergency cesarean section that may save her fetus but will probably shorten her life? A quadriplegic young man wishes to end his life and requests a court order granting immunity for the medical staff who will unhook his respirator and administer sedatives. Is he competent to choose to die? A person's competence will have implications for whether he or she is allowed to decide what type of treatment, if any, is received; whether treatment is discontinued, including life-sustaining treatment; and whether medical professionals implementing decisions are exposed to civil or criminal liability.

Keywords: Medical decisions, law of informed consent, autonomy, capacity, standard of competence

JEL Classification: K10, K32

Suggested Citation

Berg, Jessica Wilen, Constructing Competence: Formulating Standards of Legal Competence to Make Medical Decisions (1996). Rutgers Law Review, Vol. 48, No. 2, 1996. Available at SSRN: https://ssrn.com/abstract=1126777

Jessica Wilen Berg (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-6363 (Phone)
216-368-2086 (Fax)

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