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The acceptance-refusal asymmetry in competence requirements
In 2016, this Journal published an article by Rob Lawlor1 on what we might call the acceptance-refusal asymmetry in competence requirements. This is the view that there can be cases in which a patient is sufficiently competent to accept a treatment (viz., to give consent to it), but not sufficiently competent to refuse it (viz., to withhold consent to it). Though the main purpose of Lawlor’s paper was to distinguish this asymmetry from various other asymmetries with which it has sometimes been confused,1 Lawlor also presented a brief case in favour of it. Developing an earlier argument of Ian Wilks’,2 3 Lawlor argued that, when the risks associated with refusing a treatment are graver than those associated with accepting it, a higher level of competence may be required to refuse a treatment than to accept it.
This claim could have important implications for the law, since determinations of competence often play a central role in determining the lawfulness of refusing or imposing a treatment (eg, in England and Wales under the Mental Capacity Act 2005). Indeed, the acceptance-refusal asymmetry in competence requirements, or something close to it, has played an important role in court judgments.2 However, Lawlor himself suggests that his conclusion will have practical implications only in a narrow range of cases.3
In this issue, Pickering, Giles Newton-Howes and Simon Walker (henceforth ‘the authors’) respond to Lawlor’s piece.4 They deny that competence requirements should depend on the level of risk associated with a decision, and thus that there is any basis for the acceptance-refusal asymmetry in competence requirements.
Part of the authors’ argument involves contesting the way in which Lawlor uses cases to support his view. In one case cited by Lawlor—and drawn from Wilks—we are invited to consider a whether …
Funding The authors have not declared a specific grant for this research from any funding agency in the public, commercial or not-for-profit sectors.
Competing interests None declared.
Provenance and peer review Commissioned; internally peer reviewed.
↵Lawlor  refers to the asymmetry that I have described as ‘asymmetry 2’ and distinguishes it from five other asymmetries, numbered 1 and 3-6, one of which I will return to later.
↵See, for example, Re R (A Minor) (Wardship: Consent to Treatment)  Fam 11 (CA); Re W (A Minor) (Medical Treatment: Court’s Jurisdiction)  Fam 64 (CA).
↵See , at pp. 752-3.
↵The distinction I draw below is, or is close to, Lawlor’s distinction between “standards of competence” and “how carefully we test for competence” (see , at pp. 751-2).
↵In calling this the ‘true’ standard of competence, I do not mean to imply that it is fixed—ie, that it does not depend on the context.
↵In Lawlor’s terms, my argument is an argument for asymmetry 6 (an asymmetry in “how carefully we test for competence”) but not for asymmetry 2 (an asymmetry in “standards of competence”).
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