LAUSR

In order to give legally recognized consent to, or refusal of, medical treatment or research, there are several necessary conditions. These are that: (i) the patient is given enough information on which to base a decision; (ii) the patient possesses the mental capacity to make the choice; and (iii) the patient is not coerced into making a particular decision. Anyone over the age of 18 years is usually presumed to possess sufficient mental capacity to consent or refuse, unless there is a prima facie reason to think otherwise, in which case capacity to make a particular decision should be formally tested. Anyone found to lack such mental capacity after such a test can be forcibly treated in their ‘best interests’ or according to their hypothetical wishes as if competent, judged by a surrogate. However, while most liberal jurisdictions adopt these same necessary and sufficient conditions, they sometimes disagree over how mental capacity should be conceptualized and assessed. Furthermore, in any test, it is difficult universally to capture all the norms we would expect of practical reasoning. In light of such norms, some autonomous patients are erroneously determined as non-competent and forcibly treated against their will, while some non-competent patients are left untreated by erroneously respecting an autonomous refusal. Of particular contention is how conceptions of capacity can include the roles of belief and evaluation in forming preferences for particular decisions, whilst upholding liberal principles by testing the process of decision-making and not the substance of them for fear of introducing unwanted hard paternalism (Craigie, 2011). There is plenty of discussion of so-called hard