This paper addresses the role(s) played by presumptions regarding ment
al competence in the context of clinical assessment of decision-making
capacity. In particular, the issue of whether or not the usual common
law presumption of competence is appropriate and applicable in cases
of reassessment of persons previously found incompetent is discussed.
Arguments can be made for either retaining a presumption of competence
or adopting a presumption of incompetence in reassessment cases. In a
ddressing the issue and the arguments, the authors conclude that the q
uestion is really a public policy issue which requires legislative res
olution. In writing this paper, the authors have drawn on their joint
clinical experience at the Baycrest Competency Clinic. Though the auth
ors' jurisdiction is the province of Ontario, their intent is to raise
awareness and to prompt consideration of this issue both inside and o
utside Ontario.