Against Over-Protectionism: Riskier Decisions Require Clearer Evidence of Capacity But Don't Call for Stricter Criteria.

Abstract

assessments that are described or defined in one way but are, in fact, another thing all together. In summary, given the authors’ definitions of the relevant central terms, harm and risk are logically excluded as proper objects of Capacity assessments and so judgments of Competence and Incompetence. If harm is indeed treated as a direct object of Capacity assessments—that is, not merely as indicative or evidentiary—then such assessments do not reflect the accepted meanings of the terms Capacity, Competence, and Incompetence. The dangers of such incompatibility are not restricted to mere conceptual equivocation, but also undermine the important ethical values of transparency and informed consent.