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Abstract
Clinical assessments of mental capacity have long been guided by four basic cognitive criteria (understanding, appreciation, ability to reason, communication of decision), distilled directly from widespread legal precedent in common law cases of informed consent and refusal. This article will challenge the sufficiency of these legal criteria at the bedside on the assertion that clinicians and bioethicists who evaluate decisional capacity face questions far deeper than the mere presence or absence of a patient’s informed consent. It will then present an additional standard beyond the existing cognitive criteria – to be called the Narrative Coherence Standard – that may begin to bridge the gap between the existing legal standards and higher-order bioethical priorities. This standard will be treated with a philosophical argument for its use, as well as a detailed exploration of its technical components and conceptual underpinnings.
ACKNOWLEDGEMENTS
I am grateful to Tod Chambers PhD, Catherine Belling PhD and Katherine Watson JD for their invaluable guidance during earlier stages of this research and throughout my early training in this field. Thank you also to Robert Weinstock MD for his critical reading of a more recent draft of this paper as well as Elizabeth Bromley MD PhD for helpful critiques and indispensable advice throughout this process. Finally, much thanks to the editor and reviewers of AJOB Neuroscience for their critical reflections. Not only did they strengthen my arguments considerably, they also speak to AJOB Neuroscience’s deep and abiding commitment to rigorous scholarship in this field.
Notes
1 Harriet and Jim both reflect patients that I have personally treated during my training (Harriet at the time point described above and, Jim, at a later time point). That said, I was not the psychiatrist called upon to evaluate for decisional capacity in either case. Although the essence of their stories are true, their identities have been thickly disguised in accordance with the IRB.
2 There is an important distinction between these cases as it relates to severity of outcome and imminent threat to life. This distinction is particularly relevant if one adopts a “sliding scale” approach to capacity, employing a variable standard depending on the dangerousness of the proposed intervention and/or the severity of illness (Drane Citation1985). I will largely sidestep this distinction so as not to enter the complex and separate discussion about the merits of a sliding scale approach. Suffice it to say that most proponents of this approach still advocate for use of the four MacArthur standards in the ‘most stringent’ of cases, and this paper will center on whether or not these four standards alone are universally sufficient in such instances. For simplicity, we will treat capacity as a threshold or binary standard (Buchanan and Brock Citation1989, 92) despite the reasonable arguments to be made otherwise.
3 Even within discussion of autonomy as authenticity, there is room for more nuanced distinctions to be made. Holroyd, for instance, further discriminates between agency, choice and action, understanding the autonomous mental reasoning of agency as a necessary (though insufficient) platform for autonomous choosing and execution (Holroyd Citation2009).
4 One might consider the implications that such an understanding of the self may have. Hypothesizing about potential non-human autobiographers (namely, artificial intelligence) is a helpful measure for just how far such a theory may take us. Dennet contends that a narrative conjured by a human brain is no different from one devised by an advanced machine (Dennett Citation1992). I am inclined to agree that both may generate a narrative self, but would still push further; is selfhood synonymous with consciousness? Is it the very presence of a narrative self that demands a respect for autonomy, or the attachment of that self to a whole human being that dictates our concern for its wishes?
5 One study by Gazzaniga and LeDoux illustrates this point well. In a study of subjects with left-right brain dissociation, a chicken claw was shown to the left hemisphere and a snow scene to the right. The left hand would invariably select a picture of a shovel (corresponding with the right hemisphere) and the right hand a picture of a chicken (corresponding with the left). When asked to explain the selection, subjects would respond along the following lines; “The chicken claw goes with the chicken, and you need a shovel to clean out the chicken shed.” This demonstrates both that narrative coherence is generated from the left hemisphere alone as well as the fact that such coherence is imposed even on discordant imagery (Turk et al. Citation2003).
6 Basic narrative intuition in the form of autobiographical memory does not develop prior to three years old and is said to have not reached maturity prior to adolescence (Fivush et al. Citation2011).
7 See Bruner (Citation1991). 1–21 for a helpful analysis of how the knowledge register in which a story is told differs considerably from the one that takes it in.
8 This is not to suggest that the truth (or reality) is of no consequence to an assessment of capacity. Certainly, it matters if a patient’s decision is founded in delusional beliefs. I simply mean that the Narrative Coherence Standard, per se, is not aimed at assessing truth-value. Appelbaum makes clear the importance of authenticating a patient’s history by way of collateral sources (Appelbaum Citation1981). This indispensable part of any psychiatric evaluation ought to still occur and may impact an assessment of a patient’s understanding, appreciation or ability to reason.
9 This may be misconstrued as an analysis of the patient’s self while ill, in contrast with their “prior self” before the onset of illness. Such an “other self thesis” does exist in the philosophical literature (Edwards Citation2010), but is different from what I am proposing. I don’t deny the possibility that a patient in the throes of depression or psychosis may indeed, in certain instances, be a different self. But I imagine that is difficult to clinically evaluate with both certainty and objectivity. The Narrative Coherence Standard assesses only whether the patient has sufficient relevant knowledge of the self he claims to govern.
10 This phenomenon, known elsewhere as narrative slippage, speaks to the narrator’s need to compare one’s personal narrative to the culturally accepted template and to justify “slips” or gaps between the two (Gubrium and Holstein Citation1998) A similar notion argues for the normative nature of narrative and its requisite canonicity and breach whereby the narrative veers slightly from established templates in order to maintain its “tellability” and worth (Bruner Citation1991).
11 By “adequately explain” I mean to say only that if the narrative explanation were true, the findings would be plausible or probable. I do not mean that the explanation itself is plausible or likely true. The literature on explanations, emanating from the philosophy of science, is vast. See Achinstein (Citation1983) and Sober (Citation1987) for a helpful foray into this terrain and more careful treatment of what it means for X to explain Y.
12 One may recall “Amy”, a Canadian case that compellingly illustrated a rational decision for suicide which I believe would have met both cognitive and narrative standards for decisional capacity (Cameron Citation1997) Admittedly, this topic deserves greater space and time than this paper will allow, both regarding its clinical significance and bioethical complexity.
13 To clarify, the very negation of one’s own living will (i.e changing one’s mind) does not imply the absence of narrative coherence. A patient would simply be expected to tell the story of their change of heart, with the temporal, causal and thematic elements that narrative coherence entails. It is only when a patient is incapable of doing so that we would take this as clinical evidence of impaired self-knowledge and lack of self-governing capacity. Only at this point would a living will activate and a contradictory verbal wish be overridden.
14 Galen Strawson comes to mind here (Strawson Citation2004) who argues that he conceives of himself in non-narrative terms, as an “episodic” rather than narrative self. One might imagine performing a capacity evaluation on a Strawsonian patient, who declares himself to be “episodic” or non-narrative, as he goes about explaining his decision-making process. Ironically, such a pronouncement may well be considered the very theme or schema that lends thematic coherence to the decision being made. Alternatively, one might consider that a non-narrative, Strawsonian self would still be likely to explain his decision-making in narrative terms, but he would tell the story of a particular desire (however recently it evolved) without ties to a broader autobiographical template. This tends more toward a Christmanian conception of desires (Christman Citation1991), but would still subject itself to the same scrutiny with regard to its temporal, causal and thematic coherence.