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Procedural Paternalism in Competency Determination

Published online by Cambridge University Press:  29 April 2021

S. Van McCrary  and
A. Terry Walman
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Extract

In recent years, the competency of patients to refuse life-sustaining treatment has been widely discussed. Generally, competence has been recognized to be a legal concept, holding that the patient is presumed competent unless a court declares the person incompetent and designates a guardian. It has been noted, however, that clinical medical practice often diverges markedly from this standard. Some authors have suggested that in many cases the implicit medical presumption may be that many persons, particularly the aged, are presumed incompetent to refuse treatment until they demonstrate to their physician's satisfaction that they are competent. This gap between legal theory and medical practice presents numerous difficulties to both legal and medical professionals seeking to accommodate the competing values of patient self-determination and best interests.

This paper will present and discuss a case exemplifying a particular problem that can arise in the competency evaluation process.

Type
Article
Information
Law, Medicine and Healthcare , Volume 18 , Issue 1-2 , Summer 1990 , pp. 108 - 113
Copyright
Copyright © 1990 American Society of Law, Medicine & Ethics

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References

Kapp, M., Lo, B., “Legal Perceptions and Medical Decision Making,” The Millbank Quarterly, 64 (Supp. 2, 1986):163–202, at 191–2.Google Scholar
Annas, G., Glantz, L., “The Right of Elderly Patients to Refuse Life-Sustaining Treatment,” The Millbank Quarterly, 64 (Supp. 2, 1986): 95–162, at 112.Google Scholar
Md. Est. & Trusts Code Ann. Sec. 13–709.Google Scholar
Md. Est. & Trusts Code Ann. Sec. 13–705(b).Google Scholar
Brown, R.N., “National Symposium Proposes Recommendations to Improve the Guardianship System,” Bifocal (Newsletter of the A.B.A. Commission on Legal Problems of the Elderly) 9 (Fall, 1988): 1–7.Google Scholar
Rosoff, A. Gottlieb, G., “Preserving Personal Autonomy for the Elderly: Competency, Guardianship, and Alzheimer's Disease,” Journal of Legal Medicine, 8 (1987): 1–47, at 15–16.Google Scholar
Md. Est. & Trusts Code Ann. Sec. 13–709(f)(1).Google Scholar
Brown, supra.Google Scholar
Addington v. Texas, 441 U.S. 418 (1979).Google Scholar
Rosoff and Gottlieb, supra at 36.Google Scholar
Horstman, P., “Protective Services for the Elderly: The Limits of the Parens Patriae,” Missouri Law Review, 40 (Spring, 1975): 215–78, at 255–6.Google Scholar
Buchanan, A., Brock, D.W., “Deciding for Others,” The Millbank Quarterly, 64 (Supp. 2, 1986): 17–94, at 37–8.Google Scholar
Id.Google Scholar
Katz, J., The Silent World of Doctor and Patient (New York: Free Press, 1984) at 169–75.Google Scholar
Kapp, and Lo, , supra at 164.Google Scholar