Incapacity and autonomy: striking a balance.

We want to take this opportunity to offer our perspective on some of the issues to which the Substitute Decisions Act, 1992, and the Consent to Treatment Act, 1992, represent a response. To a lesser extent, the provisions of the Advocacy Act, 1992, which governs the provision and role of advocates, will be considered. First, we hope to explain, perhaps a little more than can be done in Committee, or in the Legislature, the thinking that underlies some of the protective measures this legislation makes available to persons who are thought to be mentally incapable. Second, we provide some discussion of the problem of the criterion of mental capacity, and argue that where there is no strict criterion, it is important to ensure that individuals who are subjects of assessments of their mental capacity are protected by a balance of power in which they hold a prominent position. Third, we suggest that the lack of a strict criterion of capacity argues for a broad criterion for assessors.