Where there is a principle to raise the threshold of mental capacity required for legal competence, the application of that principle may be limited to extreme levels of performance and severity. The practical consequences have not been systematically described. Most decisions do not reach the courts and in those that do, the judgment does not always describe the court`s reasoning. Empirical research could examine the issue by presenting clinicians and lawyers with hypothetical cases or by observing what they do in circumstances where the severity of what is at stake varies. In most cases, however, the limits of capacity and severity are not reached. What principles then determine the practice described in Re T, in which the level required for competence increases in proportion to what is at stake? Every measure of capacity is prone to error, and any legal judgment that a person is competent to make a decision based on a measure of capacity is equally vulnerable. In practice, competence is only when a patient decides in contradiction with what others consider to be in his best interest. Two types of errors are then available to courts and clinicians.48 A false conclusion that the patient is not competent in these circumstances usually leads to receiving treatment that others consider to be in their best interest. A false conclusion that the patient is competent usually leads him to arrive at what others consider to be harm. The implications for clinical practice of leaving a margin of error seem different from those resulting from the balance between best interests and autonomy.

For example, additional information confirming a previously assessed level of performance could result in a patient being deemed qualified to manage his or her own affairs if, without this additional information, the combination of the severity of the consequences and uncertainty about the patient`s competence would have resulted in that person being classified as incompetent. In other words, the source and degree of doubt associated with any finding of legal capacity should be part of all evidence within legal jurisdiction, as it will contribute to the subsequent decision on legal jurisdiction. The approach has an analogy in medical statistics. Instead of an average, physicians are required to use an mean and standard deviation. The annex to the main attributes of resolvability assessments explains the elements of these assessments and the procedure for carrying them out. When carrying out resolvability assessments, resolution authorities, in coordination with other competent authorities, should in particular assess the extent to which essential financial services and payment, clearing and settlement functions can continue to be exercised; the nature and extent of intra-group exposures and their impact on resolution if they are to be resolved; the extent to which the institution has sufficient bail-in debt to allow for creditor-financed recapitalisation; the company`s ability to provide sufficiently detailed, accurate and timely information to support the solution; and the robustness of cross-border cooperation and information exchange agreements. Assessments of the resolvability of groups should be carried out by the home authority of the G-SIFI and coordinated within the GMG of the entity, taking into account the national assessments carried out by the host authorities. The resolution authorities of the host Member State carrying out resolution audits of subsidiaries established in their territory should coordinate, as far as possible, with the home authority carrying out the group-wide solvency audit. Respect for people`s stated desires can be a desirable goal, even if those desires are the expression of a legally inept decision. The humane functioning of psychiatric, medical and geriatric units, where the inability to make legally binding decisions is on the agenda, seems to require a thrifty use of coercion.10,19 The House of Lords` judgment in Bournewood55 that if an incapacitated patient is treated in his or her best interests and raises no objections, no further legal action is required, suggesting that the courts prefer an equally frugal approach to declaring a person incapacitated. Wicclair cites the example of a five-year-old whose parents allow him to choose what he will eat for lunch, unless one of the menu items is life-threatening.56 It is possible, as the balancing and margin of error approaches allow, that the child is legally empowered to make a decision, but not the other. However, it seems more likely that this jurisdiction is the same, but that their parents will want to respect the child`s decisions if it does not lead to harm.

The question of whether an increase in the severity of the consequences should lead to a corresponding increase in the mental capacity required for legal jurisdiction is discussed in the first part of the article. The usual conclusion is that he should, with the caveat, that the law`s approach to patient autonomy complicates the relationship. The second part of the paper examines the reasons for the variation in the capacity threshold in this way. The third examines two other considerations relevant to the question whether a person`s wishes with regard to his or her medical care should be taken into account, which affect this practice of shifting the threshold of capacity required for legal jurisdiction in response to what is at stake. Moreover, unlike the Council of Europe Convention on Biomedicine and the UNESCO Declaration on Bioethics, the UN Convention refrains from using the term “incapable”. According to article 12 of the Convention, it would be problematic with regard to human rights to certify that a person or group of persons is “incapable of consenting”. Rather, it presupposes their “legal capacity”, regardless of the nature or degree of their disability. In addition, it is important to note that the binding nature of the United Nations Convention as an international treaty is superior to that of other agreements, such as that of the Council of Europe, including all European and national regulations deriving from it, or even the revised Declaration of Helsinki of the World Medical Association. However, legal competence cannot be more or less available.

A person has the right or not to have his or her wishes respected with regard to the processing. Doctors, relatives of patients and, in contentious cases, the courts must decide whether that person`s mental capacity is sufficient for legal capacity and whether their stated wishes must therefore be respected if a person`s right to accept or refuse treatment is called into question. Two questions arise. In-house counsel are in-house lawyers who give the organization professionally managed legal capacity (Mackie, 1989). Organizations differ greatly in the way they manage in-house counsel. Depending on the legal regime and its professionalization project, in-house consultants certify, among other things, the legal function of the organization differently. The question that arises in this regard is how a person who is supposed to be incapable of consenting can obtain the capacity to consent through support.