Judging capacity: paternalism and the risk-related standard

There is a strong academic and medical consensus on judging patients' decision-making capacity in accordance with the seriousness of consequent risks, and this is supported in certain areas of the law. Supporters of the risk-related standard perceive an asymmetry between the level of capacity required for consent to a treatment, and the level required to competently refuse the treatment, particularly if the probable outcome of refusal is death. Despite the intuitive appeal of the risk-related standard, its opponents propose that when the risks of treatment or treatment-refusal are high, we should not require a higher standard of capacity, but be scrupulous in ensuring that a procedural standard is observed. This article considers both standards, from the point of view of the persons, interests and principles which ethics and the law seek to protect. It argues that a risk-related standard is incoherent, that a rigorously applied procedural standard will minimise paternalistic medical interventions, and that this should be reflected in the law.