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Incapacity and autonomy: striking a balance.

D Winninger, L Pineau

    Health Law in Canada
    |December 9, 1994
    PubMed
    Summary

    This paper examines the Substitute Decisions Act, 1992, and Consent to Treatment Act, 1992, focusing on protective measures for individuals with mental incapacity. It argues for a balanced power dynamic and broad criteria for capacity assessors.

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    Area of Science:

    • Legal Studies
    • Bioethics
    • Public Policy

    Background:

    • Legislation such as the Substitute Decisions Act, 1992, and Consent to Treatment Act, 1992, addresses issues surrounding mental capacity.
    • The Advocacy Act, 1992, also plays a role in defining the function of advocates.

    Purpose of the Study:

    • To elucidate the rationale behind protective measures for individuals deemed mentally incapable.
    • To discuss the challenges in establishing a strict criterion for mental capacity.
    • To advocate for a balanced power structure in capacity assessments, prioritizing the individual's position.

    Main Methods:

    • Legislative analysis of the Substitute Decisions Act, 1992, Consent to Treatment Act, 1992, and Advocacy Act, 1992.
    • Philosophical and ethical discussion on the concept of mental capacity.
    Keywords:
    Advocacy Act (Ontario)Consent to Treatment Act 1992 (Ontario)Legal ApproachMental Health TherapiesProfessional Patient RelationshipSubstitute Decisions Act (Ontario)

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  • Argumentative analysis of power dynamics in assessment processes.

    • Main Results:

    • The legislation provides protective measures for individuals assessed as mentally incapable.
    • A strict criterion for mental capacity is problematic, necessitating alternative safeguards.
    • A balanced power dynamic is crucial, with the assessed individual in a prominent position.

    Conclusions:

    • The absence of a strict capacity criterion supports the need for a broad assessment framework.
    • Ensuring a prominent role for individuals in capacity assessments is vital for protection.
    • The discussed legislation aims to balance rights and protections for vulnerable individuals.