The most influential work in the field, and most responsible for the confusion of capacity and competence is Grisso, T. and Appelbaum, P. S., Assessing Competence to Consent to Treatment (New York: Oxford Press, 1998). For example, they say on p. 17 “our description of competence is guided by the law…” … followed by the claim disputed in this article that “fortunately the legal perspective is consistent with an ethical analysis of competence as well.” One could eliminate most of the confusion simply by rejecting any use of the phrase “competence to consent” and substituting “capacity to consent.” While this error usually traces to the works of those two authors, the confusion began before that. For example in the very important book R. R. Faden and T. L. Beauchamp, A History and Theory of Informed Consent (New York: Oxford, 1986), there is a sophisticated analysis of the principle of Autonomy in terms of informed consent and authenticity (see pp. 237-8), but alas they too sometimes muddy the waters by referring to “competence” rather than “capacity.” However the overall concern in their book is correct, to avoid raising the bar for when patients have the right to make their own medical decisions, in order to preserve their freedom and control over their own life. For a more detailed discussion of the role of authenticity, and how it can replace reasoning as a condition of consent: J. P. Spike, “Personal Identity Is the Philosophical Penumbra in Which Capacity Must be Assessed,” Ethics, Medicine and Public Health 2, no. 4 (2016): 540-549.Google Scholar

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The problem of other minds is a classic issue in philosophy of mind, with origins in Descartes' Meditations I, often called “the evil demon” argument for skepticism, and brilliantly updated in the 20th century by Hilary Putnam as the “the brain in a vat” problem. It is related to the problem of private language as well, and the solution to both problems is related; we think in language, and language is a social and physical-causal phenomenon (as meanings of many words, especially scientific terms, are set by the facts of the physical environment we live in and to which our words refer). Some classic readings on the topic of other minds from the Anglo-American analytic tradition: McGinn, C., “What is the Problem of Other Minds?” Proceedings of the Aristotelian Society, Supplementary vol. 58 (1984): 119-37; J. S. Mill, An Examination of Sir William Hamilton's Philosophy (London: Longmans, 1865); T. Nagel, The View from Nowhere (Oxford: Oxford University Press, 1986); H. Putnam, Reason, Truth and History (New York: Cambridge University Press, 1981); G. Ryle, The Concept of Mind (London: Hutchinson's University Library, 1949); E. Sober, “Evolution and the Problem of Other Minds,” Journal of Philosophy 97 (2000): 365–387; J. Wisdom, Other Minds, 2nd ed. (Oxford: Blackwell, 1968); and from the European Continental tradition, one should also include M. Merleau-Ponty, C. Smith (trans.), Phenomenology of Perception (New York: Rout-ledge, 1962).Google Scholar

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Physicians are professionals with many responsibilities to their patients and society, while patients are engaged in the system only for their own benefit. See, for one example that is widely used in medical education in the US and Europe: “The Physicians Charter: ABIM-ACP-EFIM,” Annals Internal Medicine 136, no. 3 (2002): 243-246.Google Scholar

Grisso, T. and Appelbaum, P. S., Assessing Competence to Consent to Treatment: A Guide for Physicians and Other Health Professionals (New York: Oxford University Press, 1998);. P. S. Appelbaum, “Assessment of Patients' Competence to Consent to Treatment,” The New England Journal of Medicine 357, no. 18 (2007): 1834-40; J. W. Berg, P. S. Appelbaum and T. Grisso, “Constructing Competence: Formulating Standards of Legal Competence to Make Medical Decisions,” Rutgers Law Review 48, no. 2 (1996): 345-96; A. R. Jonsen, M. Siegler, and W. Winslade, Clinical Ethics, 8th ed. (New York: Lange, 2015). See sections 2.2.1 and 2.2.2 where they simply repeat the formula from Appelbaum and Grisso. A better job than in any of the works by or influenced by Appelbaum and Grisso, and more aware of the importance of preserving patient Autonomy and patient's rights (and less paternalistic throughout) is the text: B. Lo, Resolving Ethical Dilemmas: A Guide for Clinicians, 4th ed. (New York: Lippencott, 2009).Google Scholar

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