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Ditching decision-making capacity
  1. Daniel Fogal1,
  2. Ben Schwan2
  1. 1Center for Bioethics, New York University, New York, New York, USA
  2. 2Department of Bioethics, Case Western Reserve University, Cleveland, Ohio, USA
  1. Correspondence to Dr Ben Schwan, Department of Bioethics, Case Western Reserve University, Cleveland, OH 44106, USA; ben.schwan{at}


Decision-making capacity (DMC) plays an important role in clinical practice—determining, on the basis of a patient’s decisional abilities, whether they are entitled to make their own medical decisions or whether a surrogate must be secured to participate in decisions on their behalf. As a result, it is critical that we get things right—that our conceptual framework be well-suited to the task of helping practitioners systematically sort through the relevant ethical considerations in a way that reliably and transparently delivers correct verdicts about who should and should not have the authority to make their own medical decisions. Unfortunately, however, the standard approach to DMC does not get things right. It is of virtually no help in identifying and clarifying the relevant ethical considerations. And, embedded in the prevailing anti-paternalist paradigm, DMC assessments obfuscate and distort the underlying ethical justification for granting or withholding decisional authority. Here, we describe the core commitments of the standard approach to DMC and then highlight three problems with it. We then argue that these problems are significant enough that they call for more than merely tinkering and fine-tuning; variations of the standard approach cannot adequately address them. Instead, we should ditch DMC.

  • Decision Making
  • Personal Autonomy
  • Ethics- Medical
  • Mental Competency
  • Paternalism

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  • Contributors Each author contributed equally to this work.

  • 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 Not commissioned; externally peer reviewed.