Affect, Values and Problems Assessing Decision-Making Capacity

Abstract

The dominant approach to assessing decision-making capacity in medicine focuses on determining the extent to which individuals possess certain core cognitive abilities. Critics have argued that this model delivers the wrong verdict in certain cases where patient values that are the product of mental disorder or disordered affective states undermine decision-making without undermining cognition. I argue for a re-conceptualization of what it is to possess the capacity to make medical treatment decisions. It is, I argue, the ability to track one’s own personal interests at least as well as most people can. Using this idea, I demonstrate that it is possible to craft a solution for the problem cases—one that neither alters existing criteria in dangerous ways (e.g. does not open the door to various kinds of abuse) nor violates the spirit of widely accepted ethical constraints on decision-making assessment.

Keywords:

• Decision-making
• medicine
• philosophy
• psychiatry/psychology
• professional-patient relationship

Notes

1 In the U.S., some think “capacity” refers to a clinical judgment whereas “competence” refers to a legal one. In the UK, insofar as a distinction is made, it is typically the opposite: “competence” is assumed to refer to a clinical judgment and “capacity” to a legal one. I use them interchangeably. I do not find distinguishing them helpful given that (1) even courts often use the terms interchangeably and (2) clinical judgments often have legal force (Kim 2010, 17–18) and (Hawkins and Charland 2020, §1.1).

2 There remains disagreement about the extent to which the four-abilities model is consistent with legal requirements outside the U.S., in particular the UK Mental Capacity Act of 2005. However, it is clear that the two are close, and that both emphasize cognition in a similar way. Thus the concerns raised here plausibly apply to it as well.

3 Although anorexia nervosa is more common among females, males make up approximately 10% of patients (Weltzen 2016).

4 The case of Terence is based loosely on cases described by Tan et al. (2006a) in a small study of capacity among anorexia patients. All were deemed competent on the basis of assessment with the MacCAT-T. Although two patients clearly lacked appreciation, the rest seemed to have insight into their illness but, like Terence, were simply not willing to gain weight. One of the patients in this study says that death is preferable to gaining weight (2006a, 274–275).

5 Donna is an altered version of “Ms. G” presented in Halpern (2001, chap 1). I deliberately changed the original to remove elements that, in my experience, tend to distract people from the issue of decision-making capacity.

6 For an example of the appeal to appreciation see the commentary on Tan et al. (2006a) by Grisso and Appelbaum (2007).

7 The language of value neutrality is common. See, e.g., Holroyd (2012), Craigie (2013a), Banner (2013), Freyenhagen and O’Shea (2013), Hope et al. (2013), Mackenzie and Rogers (2013), Richardson (2013), and Hawkins (forthcoming). The UK Mental Competence Act of 2005 states “a person is not to be treated as unable to make a decision merely because he makes an unwise decision” (Section 1, Principle 4).

8 Tan et al. (2006a) suggest this might be permissible if the values are “pathological values,” i.e. values that derive from the mental disorder. However, this proposal faces various other problems that I cannot, for reasons of space, discuss here. For further discussion of this proposal (see Vollmann 2006; Tan et al. 2006b; Whiting 2009; Tan et al. 2010; Kim 2016; Hawkins and Charland 2020).

9 Any claims made in this article about the verdicts my model would give in particular cases are simply guesses shared for the purpose of illustrating how the model is intended to work. Real verdicts would, of course, depend on careful specification of the central concepts sketched here as well as sufficient amounts of high quality evidence to support relevant claims.

10 Pickering, Newton-Howes, and Young (2022) argue that “in some cases [a person should] be judged incapable of making [a] decision because of the harmfulness of the decision.” This proposal is problematic for the same reasons my requirement (1) would be problematic on its own. We need to limit appeals to the welfare outcome of a choice and we need a justification for why the limit is what it is. Otherwise we risk impinging on personal freedom too much.

11 I have already mentioned Halpern (2001, 2011, 2012). See also Craigie (2013b) who explores the relevance of the ability to accurately imagine different possible futures.

12 Thanks to audiences that have given helpful feedback, including attendees of Psychiatry Grand Rounds at Duke Medical School, and attendees of talks given at/for The University of Cape Town Medical School, The UNC Philosophy and Psychiatry Research Group, The Oxford-Uehiro Centre for Practical Ethics, The Center for Bioethics and Medical Humanities of The Medical College of Wisconsin, the Kansas Philosophy of Well-Being Workshop, and the Rocky Mountain Ethics Congress. Special thanks to Laura Weisberg, Kathryn Petrozzo, Laura Specker Sullivan, Roger Crisp, and Walter Sinnott-Armstrong. I dedicate this paper to my friend and co-author Louis Charland, who, sadly, passed away unexpectedly in 2021. He would be happy to see this in print. Finally, huge thanks to my friend Jodi Halpern, who first sparked my interest in capacity, and with whom, over the years, I have had many fruitful discussions of these matters.

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Funding

The author(s) reported there is no funding associated with the work featured in this article.