Excerpt taken from Decision-Making Capacity (Stanford Encyclopedia of Philosophy)
Although new topics continue to be introduced, it is clear that outside philosophy much is assumed as settled that would not look settled to a philosophical eye.
where “appropriate” here just means an implementation that strikes just the right balance between protecting the truly vulnerable, on the one hand, and promoting freedom for those who can meaningfully exercise it, on the other. It is a moral failure if we say of someone who lacks decisional capacity that she has it, for then we fail to protect someone who genuinely cannot decide for herself. But it is also a serious moral failure to say of someone who has decisional capacity that she lacks it, for we then deprive someone of a very important moral power: the power to direct her own life through making her own decisions.
Elements of capacity
Most theorists seem to agree that it is necessary for a patient to have these 4 sub-capacities to be announced as having decisional capacity:
- (Choice) The ability to express or communicate one’s choice
- (Understanding) The understanding of the facts involved in that decision
- (Appreciation) A genuinely belief that the information truly applies to them
- (Reasoning) Consistency, the ability to derive conclusions from premises, to weigh risks and benefits and evaluate putative consequences
Expectations for a theory of decisional capacity
- (Inclusivity) No matter what theory of decisional capacity we develop, it must turn out that most ordinary adults count as having capacity most of the time. In other words, as a society we are morally committed to imposing minimal restraints on individual choice
- (Decision relativity) An individual’s decisional capacity should be assessed relative to a specific decision, at a particular time, in a particular context. Not all decisions require the same level of mental ability, and decisional capacity can vary within a single individual over time and in relation to what else is going on
- (All-or-nothing assessment) For practical purposes, a ruling on capacity must be all-or-nothing: either the patient in question has decisional capacity or she lacks it
- (Value neutrality) A patient cannot be declared incompetent simply on the basis of her (perhaps unusual) values. Individuals are free to pursue their own idiosyncratic and at times unpopular values
- (Independence from diagnosis) Similarly, a patient cannot be declared incompetent simply on the basis of her diagnosis
- (Asymmetrical choice) An individual could sometimes be competent to consent to a treatment that she is not competent to refuse. The risks respectively associated with consenting to or refusing treatment are not always the same
The primary issue is about whether the four abilities are always sufficient or whether there are cases in which something else, some further abilities or some further feature of the subject’s choice, might be relevant to the assessment of capacity. The three elements most commonly cited by critics are (1) the subject’s emotions, (2) the subject’s values, and (3) the authenticity of a subject’s choice.
Values & Authenticity:
Anorexia nervosa patients: Although I didn’t mind dying, I really didn’t want to, it’s just I wanted to lose weight, that was the main thing.
- Individuals can agree that (a) anorexia is a devastating condition and be puzzled by (b) the fact that such individuals typically count as having decision-making capacity, and yet also remain puzzled about (c) how precisely to explain incapacity in these cases in a way consistent with the general values described earlier
- Hope et al. (2013) have argued that individuals with anorexia are in the grip of affective states that shape how they see the world. Yet, although the world presents to them as one way, they may at another more reflective level, reject the appearances. Thus an individual may have a strong feeling or emotional sense that she is fat. But even though these feelings incline her to accept the proposition that she is fat she may not in fact believe at a higher level that she is fat. She may know quite well that she is dangerously thin. An analogy here with optical illusions is helpful. The experience of seeing a stick in water as bent is incredibly powerful, but we may nonetheless know it is not bent. However, the mental state that is most authoritative when it comes to reporting our beliefs may not be the same as the mental state that is most motivationally powerful. When it comes time to make choices about treatment, the salience of the affective phenomena and the relative lack of salience of the dangers of self-starvation may lead a person to refuse treatment.
The only logical argument she could possibly offer would be: I would prefer to risk death than to put on weight (Hope et al. 2013: 30). And this looks like a preference. On the classic analysis she is competent because her refusing treatment logically follows, given her preferences. But as Hope et al. say:
But this preference is not one she clearly held before discussion with her physician. It was constructed to create a rational argument for refusing treatment that can satisfy her physician. (Hope et al. 2013: 30)
contemporary clinicians and researchers do recognize that human will and agency can be impaired or even depleted (Baumeister et al. 1998) in various ways by diseases of many sorts