Incapacitated persons - participation rights and the legal concept of the capacity to consent

摘要

Legal problems related to the capacity to consent and decision-making have recently become increasingly important. This concerns the prerequisites and limitations of legal participation as a basis of social participation. Among the relevant social spheres and fields of action, this particulary concerns medicine and health care as well as disability and care. At the normative level, with a view to those concerned, this leads to fundamental questions resulting from the tension between self-determination and care as basic legal and ethical standards. At the empirical level, there are debates between the law and the sciences with regard to the relevant knowledge base for the assessment of (in)capacity to consent. The traditional controversies about the relevant legal criteria determining the existence or absence of capacity to consent are intensified by some recent legal developments, two of which must be highlighted. One of these is the postulate, increasingly emphasized by courts and legislator, of an at least communicative involvement of persons incapable to give consent in the decision-making process. The other is the fundamental discussion of medical ethics on concepts of assisted self-determination and supported decision-making, the consequences of which will also be of relevance at the legal level. Insofar, the development of guardianship law and the legal requirements of the UN Disability Rights Convention are of particular importance.