Decision-making capacity: inherent ability or ethical judgment?

Definition of the problem Because determining a patient's decision-making competence has far-reaching ethical and legal implications, the concept of competence must be clearly understood. The criteria for competence are commonly defined in terms of mental abilities; more basic questions as to whether competence refers to an inherent ability or to an ethical judgment are rarely discussed in more detail. A central aspect of this distinction between ability and judgment concerns the significance of ethical considerations relating to paternalism and its legitimacy. Where competence is conceived as inherent ability, such considerations follow a determination of competence; where it is conceived as ethical judgment, these matters become constitutive of understanding and determining competence. Despite the observed tendency to understand competence ideally as an inherent ability, actual practice suggests that, to the contrary, competence is conceived as a matter of ethical judgment. These conflicting tendencies may account for associated conceptual controversies, especially with regard to risk-relative evaluations. Moreover, conceived as judgment, determinations of competence need not adhere rigidly to definitions of autonomy, and so are better able to deal with the inherent ambiguity of this notion.