Unfitness to Plead Consultation Responses - Law Commission ...

The assumption that has been made is that assessments of rationality refer to the
content of the decision rather than the process by which the decision was
reached (see 3.51 for the distinction). The content of the decision necessarily
depends on the decision‐maker’s interests and values. So to base an assessment
of capacity on the content of the decision would threaten the right to self‐
determination (3.48); the right to pursue one’s own interests and values. Instead,
the CP proposes, I think appropriately, that evaluations of decision‐making
capacity should “focus on the process of understanding and reasoning” that gives
rise to the decision (3.51). The CP notes, however, that “This is not to say … that
the
rationality or otherwise of a decision is irrelevant.” In other words, this is not
to say the content of the decision is irrelevant.
The understanding of “rationality” adopted in the CP is consistent, I believe, with
the understanding of the term most widely adopted in discussions of mental
capacity in English law. However, this usage diverges from the dominant use of
the term in psychology and philosophy, where “rationality” is used to refer to
both the process and the content of decisions. The former is often called
“procedural rationality” and the latter “substantive rationality”. And of the two,
procedural rationality is generally considered the most basic use of the term. I
have
explored these ideas more fully in a paper that is currently under review
(Craigie & Coram, under review).
While I believe the CP’s use of the term should be made explicit, it is my view
that this use of the term is justifiable given its consistency with the established
use
of the term in English medical law. I note, however, that this usage has been
criticized in the context of US medical law:
“Some courts have shied away from embracing this standard because of an
apparent confusion regarding interpretation of the term irrational. A decision
sometimes has been called irrational merely because the patient’s choice was
unconventional … In contrast, the “irrationality” to which this standard properly
refers
pertains to illogic in the processing of information, not the choice that
eventually
is made” (Appelbaum & Grisso 1995: 110)
References:
P.S Appelbaum & T. Grisso. (1995) The MacArthur Treatment Competence Study I:
mental
illness and competence to consent to treatment. Law and Human Behaviour
19(2): 105‐126.
Craigie, J. & Coram, A. (under review) Irrationality, Capacity and Neuroscience, In: Legal
Responsibility and Neuroscience, Nicole A Vincent
(ed.) OUP series "Neuroscience, Law,
and Philosophy" (series eds.: Lynn Nadel, Fred Schauer, and Walter
Sinnott‐Armstrong).
A draft can be downloaded from this page:
h
ttp://www.kcl.ac.uk/law/people/researchcentres/jcraigie.aspx