DETERMINING CAPACITY: HOW BENEFICENCE CAN OPERATE IN AN AUTONOMY-FOCUSED LEGAL REGIME BY SAM BOYLE

Capacity is a central issue for people with disabilities and some older adults, and its place in the legal system is the subject of debate. This Article empirically investigates one of the central issues of controversy involving judicial decisions on capacity (which may be called “competence”): whether such decisions involve an unspoken role for beneficence, despite the law’s insistence that beneficence should not have a role in this determination.

This Article presents the results of a study of legal determinations made on capacity in the jurisdiction of Queensland, Australia. The particular focus of the study is how medical evidence on capacity affects the judicial determination of capacity. In circumstances where the determination of capacity involves possible risk to the person whose capacity is being determined, a finding of incapacity might be seen as a safer option because it allows the court or tribunal to make a protective order over the person. Therefore, if beneficence does have a role in judicial decision-making, it might be expected that courts and tribunals would be more likely to side with the medical opinion that said the adult lacked capacity, rather than the opinion that said the adult had capacity, at least in contexts involving potential risk. This study investigated the extent to which that was true. The results of this study show that the tribunal assessing an adult’s “personal” and “financial” capacity tended to prefer the medical evidence of incapacity over that of capacity, in a manner with a high level of statistical significance. This suggests a role for beneficence in the determination of capacity, a role that is not visible in any individual judgment. The implications of this finding are discussed.

ABOUT THE AUTHOR