Freedman on Competence

Freedman on Competence

Competence, Marginal and Otherwise

Issues of competence
Discussion of what "marginal competence" means: empirical and moral issues
Survey of various proposed criteria for competence

Rights and Persons

Rights protect the interests of the persons
They also "define the limits of the protected personality"
"When we determine, through rights, the kinds of interests and desires that we shall protect, we also determine to some degree the manner in which persons shall be protected"

Rights and Competence

With competent individuals, we usually respect their rights by heeding their wishes: they "tell us what content to give to their rights"
With those who are incompetent, this approach doesn’t work
instead, may act in their "best interests"

Marginal Competence

On the border between competence and incompetence
(Perhaps better to say that competence is a matter of degree, and what we recognize that not all people who are not deemed competent are incompetent?)
Freedman: term "marginally competent" may reflect "the limits of our knowledge"

Forms of Incompetence

Due to age
Due to developmental handicap/mental retardation
Due to some variety of mental illness
(including dementia, neurological problems?)

Marginal Competence:

Age

Competence in older children, marginal competence in slightly younger children
Respect for autonomy of older children

Mental Retardation

The majority of this group have some degree of competence (the mildly and moderately retarded)
Only the severely handicapped are incompetent
Note the parallels with age differences

Mentally Ill

The vast majority of this population are not wholly incompetent
"Mental illness is a fragmented, irrational combination of intact and destroyed faculties" (Freedman is quoting Gaylin)

Marginal Competence

Some difficulties can be alleviated simply by recognizing that there is a middle classification between competence and incompetence
Theoretical significance: deeper understanding of competence is required to clarify the status of the marginally competent

Freedman’s Approach

Method: Clarify the concept of competence

Goal: To achieve an understanding of this concept that is useful in dealing with "the vagaries of the human condition"

Competence as an Empirical and as a Moral Term

Partly empirical: describes facts about the world
Partly moral/normative: carries implications about how we ought to deal with a person, to respond to the facts

Testing for Competence

Different tests for competence are used in different professions (esp. medical, legal)
But the question "what is competence?" is prior to the question of how to measure it or test for it
There are different "background understandings" of competence

Does the Patient Function Well?

Often used by physicians
Involves ability to work, to have interpersonal relationships, etc.
Looks at how a person acts

Does the Person Understand Her Actions?

Used in legal settings
The individual must understand what she is doing and what the outcomes of her actions are likely to be
Looks at information

Differences Between the Two Approaches

Legal standard is narrowly focussed, context and information-specific; medical standard looks at actions and interactions
Scope of competency differs: on the legal approach a person may be competent to do some things but not others (e.g. contract, vote, drink)
Freedman: the legal standard recognizes that competence (especially marginal competence) can vary in different activities
Charland - emphasizes that one can even be competent to consent to treatment but not competent to refuse the same treatment

Individualization

Tension still exists between two approaches: "since situations of choice differ, competence cannot be an across the board affair"
"since situations of choice are similar, competence cannot be entirely determined in an ad hoc fashion"

Policy vs. Concept

Policy view: judges criteria of competence by their results
Concept view: supplies a theory of competency that tells us who is (not) competent
to some extent, the policy view presupposes a concept of competence

Situations and Situation-Types

Some situations require their own test of competence
Others are similar enough that one test of competence can suffice for a number of situations (they are the same situation-type)
e.g. consent to medical treatment, capacity to serve in armed forces (same concept, different policy questions)

Criteria: 5 Main Tests

1) Reasonable result/outcome

2) Rational process has been followed/reasons given

3) Can express consent/refusal

4) Can understand and act on information

5) Actually understands and acts on information

An example: Jones

Dr. Smith recommends treatment with thorazine
Jones refuses treatment
Is he competent to do so?

Is Jones Competent?

Even the minimal information provided is sufficient to establish Jones’s competence on two of the five possible standards
reasonable outcome test: but who decides what is a reasonable outcome?
ability to make a choice: Jones has made a choice

Further Information Required...

For test two (can give good reasons): would need to know Jones’s reasons for refusal
fear of side effects vs. fear of mind control
For test four: need to know not Jones’s reasons for refusal, but whether is is capable of understanding the information relevant to his refusal
For test five: need to know whether Jones understands the actual information relevant to his refusal
important difference from test four, which requires only information of similar complexity

Consent is:

Process-centred: concerns more than just the result of the decision
Person-centred: depends on the characteristics of the individual involved
the last of the proposed criteria (#5) comes closest to what we want

Rational Reasons vs.
Recognizable Reasons

Reasons are the premises that support the decision (conclusion)
Requiring that reasons are rational might lead to an undesirable paternalism
who decides what is rational
A less stringent notion of "rational reasons" requires only that the reasons are relevant, not that they are accepted

Dispositional Competence

If a person’s life appears to be lived competently, then strong evidence of incompetence would be needed for a person’s choices re medical treatment to be questioned
Takes into account medical emphasis on functioning