Narrative Capacity

Toomey, James, (August 31, 2021).

100 N.C. L. Rev. 1073

Available at SSRN: https://ssrn.com/abstract=3914839

Abstract

The doctrine of capacity is a fundamental threshold to the protections of private law. The law only recognizes private decision-making—from exercising the right to transfer or bequeath property and entering into a contract to getting married or divorced—made with the level of cognitive functioning that the capacity doctrine demands. When the doctrine goes wrong, it denies individuals, particularly older adults, access to basic private-law rights on the one hand and ratifies decision-making that may tear apart families and tarnish legacies on the other.

The capacity doctrine in private law is built on a fundamental philosophical mismatch. It is grounded in a cognitive theory of personhood, and determines whether to recognize private decisions based on the cognitive abilities thought by philosophers to entitle persons in general to unique moral status. But to align with the purposes of the substantive doctrines of property and contract, private-law capacity should instead be grounded in a narrative theory of personal identity. Rather than asking whether a decision-maker is a person by measuring their cognitive abilities, the doctrine should ask whether they are the same person by looking to the story of their life.

This Article argues for a new doctrine of capacity under which the law would recognize personal decision-making if and only if it is linked by a coherent narrative structure to the story of the decision-maker’s life. Moreover, the Article offers a test for determining which decisions meet this criterion and explains how the doctrine would work in practice.

Conclusion

Scholars and courts have long recognized that the threshold doctrine of capacity in private law requires reform to meet the needs of our aging society.  What they have not clearly seen is the doctrine’s fundamental error—a philosophical misalignment between the legal test, based on the construct of personhood, and its purposes, which are concerned with personal identity. This Article has excavated this distinction. And it has articulated and evaluated an alternative.

We think of ourselves as stories and we make meaning of our lives through our stories. That is what is at stake in the doctrine of capacity—whether an individual may continue to write their story by making decisions and choices.  Concern for the stories of our lives should be a paramount guiding principle of the capacity doctrine. In short, courts should only intervene in our decision-making where the story we would tell with our choices ceases to be our story at all.

A pdf is here.

Ethical Framework for the Use of Technology in Supervision

By LoriAnn S. Stretch, DeeAnna Nagel and Kate Anthony

Ethical and Statutory Considerations

Supervisors must demonstrate and promote good practice by the supervisee to ensure supervisees acquire the attitudes, skills, and knowledge necessary to protect clients. Supervisors and supervisees must research and abide by all applicable legal, ethical, and customary requirements of the jurisdiction in which the supervisor and supervisee practice.   The supervisor and supervisee must document relevant requirements in the respective record(s).  Supervisors and supervisees need to review and abide by requirements and restrictions of liability insurance and accrediting bodies as well.

Informed Consent

Supervisors will review the purposes, goals, procedures, limitations, potential risks, and benefits of distance services and techniques. All policies and procedures will be provided in writing and reviewed verbally before or during the initial session. Documentation of understanding by all parties will be maintained in the respective record(s).

Supervisor Qualifications

Supervisors will only provide services for which the supervisor is qualified.  The supervisor will provide copies of licensure, credentialing, and training upon request.  The supervisor will have a minimum of 15 hours of training in distance clinical supervision as well as an active license and authorization to provide supervision within the jurisdiction for which supervision will be provided. Supervisors providing distance supervision should participate in professional organizations related to distance services and develop a network of professional colleagues for peer and supervisory support.

Supervisee and Client Considerations

Supervisors will screen supervisees for appropriateness to receive services via distance methods. The supervisor will document objective reasons for the supervisee’s appropriateness in the respective record(s).  Supervisors will ensure that supervisees screen clients seeking distance services for appropriateness to receive services via distance methods. Supervisors will ensure that the supervisee utilizes objective methods for screening clients and maintains appropriate documentation in the respective record(s).

Supervisors will ensure that supervisees inform clients of the supervisory relationship and that all clients have written information on how to contact the supervisor.  Written documentation of the client acknowledging the supervisory relationship and receipt of the supervisor’s contact information should be maintained in the respective record(s). Supervisors will only advise the supervisee to provide services for which the supervisee is qualified to provide.
Clients and supervisees must be informed of potential hazards of distance communications, including warnings about sharing private information when using a public access or computer that is on a shared network.  Clients and supervisees should be discouraged, in writing, from saving passwords and user names when prompted by the computer.  Clients and supervisees should be encouraged to review employer’s policies regarding using work computers for distance services.

The entire story is here.