Presumptions respecting mental competence

This paper addresses the role(s) played by presumptions regarding mental competence in the context of clinical assessment of decision-making capacity. In particular, the issue of whether or not the usual common law presumption of competence is appropriate and applicable in cases of reassessment of persons previously found incompetent is discussed. Arguments can be made for either retaining a presumption of competence or adopting a presumption of incompetence in reassessment cases. In addressing the issue and the arguments, the authors conclude that the question is really a public policy issue which requires legislative resolution. In writing this paper, the authors have drawn on their joint clinical experience at the Baycrest Competency Clinic. Though the authors' jurisdiction is the province of Ontario, their intent is to raise awareness and to prompt consideration of this issue both inside and outside Ontario.