Practice Issues in Sexuality and Learning Disabilities

By Ann Craft | Go to book overview

6

Competency and consent

The importance of decision-making

Michael Gunn


THE SIGNIFICANCE OF COMPETENCY AND CONSENT: THE IMPORTANCE OF DECISION-MAKING

People regularly are required to make decisions. The ability to make such decisions is an important mark of a person's independence. It is, therefore, crucial that a person is allowed to make decisions whenever possible and that those decisions are respected. Respect for decisions may involve accepting a decision which is not perceived by others to be sensible. So, for example, a Jehovah's Witness is entitled to decide not to accept a blood transfusion even if everyone else involved is of the view that recovery from a severe stab wound is not possible without such a transfusion (R v Blaue (1975)). Writers of wills (testators) are not required to leave their property to spouses and children. Although Parliament has indicated that dependant relatives may have a claim on the estate if not provided for (Inheritance (Provision for Family and Dependants) Act 1975), the will that the testator writes is not invalidated by failure to provide for such people.

An adult with learning disabilities is in no different position. As an adult, her or his decisions must be respected, even if they are perceived by others, such as carers, not to be entirely appropriate or sensible or decisions 'which I think are right'. These assertions are based upon the principles of autonomy and self-determination. They appear to be generally accepted principles upon which it is appropriate to base the practice of accepting an adult's decisions. Indeed Cardozo, an American judge, expressly recognised the principle in the context of consent to treatment, when he said:

'Every human being of adult years and sound mind has a right to determine what shall be done with his own body'

(Schloendorff v Society of New York Hospitals (1914)).

-116-

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