Recently posted on SSRN: "Let Me Tell You What I Want: Decisional Capacity, Neurogenic Speech and Language Impairments, and the Law"
MARSHALL B. KAPP, Florida State University - College of Law and College of Medicine
Patients of speech and language pathologists (SLPs) frequently encounter a variety of important clinical (diagnostic, therapeutic, and research-related), personal, family, residential, and financial decisions that need to be made in their lives. Valid decisions can be made only by people with adequate decisional capacity. Patients’ capacity thus is a crucial matter for SLPs in fulfilling their professional duties.
The subject of decisional capacity is inherently interdisciplinary and encompasses a number of different components, among them medical, psychological, social, ethical, and legal considerations. This article concentrates on the legal aspects of decision making, because “[e]ven when the legal system is not formally involved in the competency evaluation of a particular individual, clinical practice and ethical conduct occur within and are informed by legal parameters.” Put differently, “Judicial decisions and statutory language inform clinical capacity criteria and assessments. Similarly, judicial and legal standards are derived from clinical capacity criteria and clinically based research.”
Guided by a legal focus, the first section outlines the key conceptual foundations anchoring a discussion of decisional capacity generally. The paper then attempts to apply these conceptual foundations specifically to people with significant neurogenic speech and language impairments resulting from aphasia, dysarthia, cognitive deficits, hearing deficiencies, and visual problems. This population is especially at risk of not being involved in the decision making processes that affect their lives. In the ensuing section, the legal and practical consequences of insufficient decisional capacity for individuals with motor speech disorders and language disturbances are set forth.
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