Determinations of Competence Ought Not to Be Primarily Grounded in Paternalistic Justifications regarding Welfare.

Abstract

appropriate authority, not the other way around. And this is indeed a serious concern. If facts about competence can’t justify giving or withholding authority, then there doesn’t seem to be any significant practical role for them to play. To preserve competency’s justificatory role, an externalist would have to insist that competence is determined independently of whether all-things-considered the patient should have authority over the choice at hand. But on such a view, it’s mysterious why facts about the harmfulness of a decision should make it the case that a certain degree of capacity is required for competence. So it’s not clear how the constitutive account can avoid the worry that motivates Pickering et al. to reject it. In summary, while Pickering et al. highlight important tensions in the case of C, as well as in the practice of assessing competency more generally, their proposed account faces serious difficulties. To begin with, recall that if their explanatory account is intended to be an externalist account of competence judgments (rather than competence itself), then it fails to engage with the internalist/ externalist debate as standardly conceived. Alternatively, if their account is meant to vindicate a form of externalism (standardly conceived), then it’s not clear exactly what explanatory connection between welfare and competence they have in mind. If it’s a mere causal connection between diminished capacity and harmful decisions, then their explanatory account reduces to the indicative account and fails to rule out internalism. If, on the other hand, welfare considerations (partly) explain why a certain threshold of capacity is sufficient for competence, then their explanatory account collapses into a kind of constitutive account they reject. So, ultimately, we’re skeptical that Pickering et al. have succeeded in defending a distinctive externalist account of competency.