In behaviour analysis, we seek consent for any interventions that we put in place. This is an important part of respect a learner?s autonomy. It is often frequently a legal requirement.
For a person?s consent to be valid, the person must be:
- Capable of taking that particular decision
- Acting voluntarily (not under pressure or duress from anyone)
- Provided with enough information to enable them to make the decision.
Competency and Capacity
Different jurisdictions define competency and capacity in different ways.
In the USA, competency is legally defined as the right to act in a certain manner (for example, write a will or refuse medical treatment). Capacity by contrast refers to the determination, usually by a doctor or other health professional, of whether a person has the cognitive abilities to understand, process, and weigh relevant information in order to arrive at a rational decision.
Under English law, the term capacity was until recently used to refer to the power of an individual to
legally undertake a specific action, whereas competence referred to possession of the skills and abilities required to do so. However, more recently these terms have come to be used interchangeably.
While the terminology differs, the same concepts are important in both of these jurisdictions.
Why are these concepts important?
Remember, as ABA professionals we respect and promote our clients? autonomy and seek to help them become more independent. Having control over your own life is important ? especially when it comes to major life decisions such as where you live, with whom you have sexual relations and medical treatment. We acknowledge that all human beings are flawed and have the right to make unwise decisions.
Based on our previous lessons, you know that these rights were frequently denied to people with IDD. It was assumed that they lacked both mental capacity and competence.
Most modern legal frameworks work on the basis that:
- Capacity/competence is assumed unless it is established that a person lacks capacity/competence
- You cannot establish that a person lacks capacity/competence unless all practicable steps have been taken without success
- A person should not be treated as unable to make a decision simply because they make an unwise decision
- If a person lacks capacity/competence with regard to a specific matter, any decision taken on their behalf must be made in their best interests
- If a person lacks capacity/competence to make a decision with regard to a specific matter, the decision made on their behalf, it should involve the least restrictions practicable on that person?s freedom of action
Remember, an assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general.
A person is unable to make a decision if they cannot do one or more of the following things:
- Understand the information given to them that is relevant to the decision;
- Retain that information long enough to be able to make the decision;
- Use or weigh up the information as part of the decision-making process communicate their decision this could be by talking or using sign language and includes simple muscle movements such as blinking an eye or squeezing a hand.
People may have the ability to consent to some interventions but not to others, or may have the ability at some times but not others.
What about children?
In general, a child is a person who is under the age of 18. In some jurisdictions, a distinction is made between different categories of children. For example, in the UK somebody over the age of 16 but the age of 18 is regarded as a minor.
Those with parental or guardianship responsibilities generally have a right to make power to make important decisions in relation to a child – for example, decisions about where a child is to live, whether a child can receive medical treatment, what religion they follow and which school they attend.
Parent and guardians have a great deal of power to make decisions regarding a child?s life, however this is not absolute. The United Nations Convention on the Rights of the Child notes that decisions should be made with the best interests of the child in mind. It also states that Governments must respect the rights and responsibilities of parents and carers to provide guidance and direction to their child as they grow up, so that they fully enjoy their rights. But that this must be done in a way that recognises the child?s increasing capacity to make their own choices.
For example, in Australia, England, Wales and Northern Ireland, this is addressed in cases involving Gillick Competence.
Gillick competence refers to the recognition that the capacity of a child to make serious decisions about his or her life will increase as does the age and understanding of that child. It is a very important concept in the area of consent with regard to medical treatment but also has implications for other decisions to be made regarding a child?s life.
What to do when somebody lacks capacity/competence
Even where it is concluded that the client lacks capacity/competence to provide or withhold informed consent, she/he will have views on the procedures being proposed. They should be supported and encouraged to express these views and these views should inform any considerations about their best interests.
Remember, not only interventions requires consent. You may also need to obtain consent and address capacity/consent and best interests issues when assessing somebody. This is especially true when assessment involves intruding on somebody?s privacy or causing them discomfort.
Above all, the professional must recognize that the goals and values of the client and people important to them may differ from those of the professional.