Medico-legal jurisdiction over human decision-making, a philosophical constructionist analysis of mental competence

grantor: University of TorontoThe socio-medico-legal practice of assessing mental competence, or decision-making capacity, provokes fundamentally important conceptual, (bio)ethical and political questions given that judgments of incompetence result in the deprivation of human rights. The dominant rationale for competence assessments, based on the view that competence is an intrinsic cognitive feature of a person, is that this practice promotes autonomy and best interests. I argue that this prevailing view is mistaken and its moral and socio-political harms are profound. I demonstrate that while the concept of (in)competence has a descriptive component, it is essentially normative or 'value-laden' insofar as it refers to the meeting, or failure to meet, a certain standard, criterion or norm of competence. I also show that (in)competence is socially constructed, by which I mean that "competence" or "incompetence" does not refer solely to an intrinsic biological property of an individual (e.g., cognition); rather, it refers to the relationship between the individual and a variety of social factors. While certain biological properties are necessary conditions of mental competence, they are not sufficient conditions because (in)competence is relational between a biological individual and social factors. Within a feminist philosophical bioethics framework, I develop a typology of causal social construction involving five different forms. Using this typology I argue that, when incompetence is properly understood to be causally constructed, there are a number of indications that women--especially elderly women, women with disabilities, and women in particular socioeconomic positions--may face excess risk of being assessed for competence and judged to be incompetent. I further develop my feminist constructionist analysis of mental competence in terms of the historical and current (bio)medicalization of human decision-making. I argue that (bio)medicalization and medico-legal control of decision-making through the practice of competence assessment constitutes an intolerable assault on moral integrity, civil rights and social justice. On moral and political grounds, I argue for demedicalizing decision-making, dismantling the practice of competence assessment by practitioners in health care contexts, and radically altering formal legal assessment practices. I provide objectives and recommendations for research, education, policy and practice.Ph.D