La capacité des patient(e)s: réflexion juridique et pratique

In principle, adults enjoy a full legal capacity. In healthcare, this rule essentially translates into the right to make one's own healthcare decisions. Often related to respect for patients’ autonomy, today the recognition of their decisional competence is a crucial legal and practical issue. But what does “being capable” mean as a patient? On which criteria should health professionals base their assessment? Conventional definitions of legal capacity and the assessment methods deriving from them are instruments of power: if a patient is considered incapable, decisions concerning her or him can be made by someone else. A legal asymmetry is then added to the well-known scientific asymmetry in the healthcare relationship. In this context, it is not surprising that the issue of capacity is a major focus for professionals. Their questioning is proportional to their responsibilities: if assessments of capacity are based on over-stringent criteria, they can quickly become tools of incapacitation; if capacity assessments are not based on any methodology, they will lead to arbitrary decisions. To avoid this dual pitfall, this contribution suggests guidelines supporting both the capacity of patients and that of professionals, who have the delicate, if not impossible, mission of assessing the capacity of another person.