2001 Fiscal Year Final Research Report Summary
A study on the competency evaluation and the substituted consent for people with intellectual disabilities
| Project/Area Number |
12620030
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
Public law
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| Research Institution | Aichi Shukutoku University (2001)
Hokuriku University (2000) |
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Principal Investigator |
TATSUGAI Yosihiko Aichi Shukutoku University, Faculty of Studies on Contemporary Society, Professor, 現代社会学部, 教授 (20208531)
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| Co-Investigator(Kenkyū-buntansha) |
FURUYA Takeshi Gunma University, Faculty of Education, Professor, 教育学部, 教授 (20173552)
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| Project Period (FY) |
2000 – 2001
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| Keywords | Intellectual disability / substituted decision / competency / informed consent / U.S.law / guardian |
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| Research Abstract |
There are many types of decision making capacities including consenting to medical treatment, managing financial affairs, power of attorney, and executing a will. The legal doctrine of consent has developed in general medical cases, and the variations of that doctrine involving mental disability have often involved minors or people with mental illness. There are some useful parallels between adults with mental illness and children on the one hand and people with mental retardation on the other. But, there are limitations to the analogies as well. The nature of mental retardation as a disability and the status of adults with mental retardation in society combine to shape consent issues in a unique way. It is widely recognized that the mentally disabled are at a disadvantage and, therefore, limits their capacity to consent in certain legal situations. Under the legal theory of parens patriae, the state may limit the power of a mentally disabled person to consent when the individual is deemed incapable of making competent decisions concerning a fundamental right. We examined in detail the American jurisprudence in fashioning safeguards for the protections of the mentally handicapped. In the United States, the capacity for the mentally disabled to consent is governed by state laws and common law. Since there is a divergence of standards in common law and the individual states have formulated their own standards for consent, the standards applied are not identical. So, we selected some critical settings in which consent issues arise for people with mental retardation and explored how the issue of consent by the mentally disabled is considered in deciding issues concerning. Those settings involved abortion, sterilization, adoption, participation in experimental medical research, medical treatment, institutional commitment, and sexual acts.
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