 Nonetheless, some version of legal/medical divide is often appealed to as part of explaining the difference between competence and capacity. One common explanation begins by focusing on who makes the determination: a clinician or a judge. It is said that a clinical assessment is a determination of “decisional capacity”, whereas “competence” refers to a legal assessment (Ganzini et al. 2005: S101). Yet despite the popularity of this way of carving things up, the distinction breaks down in practice. On the one hand, clinicians who assess decisional capacity, often make assessments that effectively carry the weight of a legal judgment, even though the courts are not involved (Grisso &amp; Appelbaum 1998: 11; Kim 2010: 17). Indeed, such assessments typically have legal authority until or unless challenged in a court. On the other hand, these days many judges confronting particular cases of medical decision-making restrict their focus to questions about the ability of the patient to make the decision at hand.