Decision-Making Capacity First published Tue Jan 15, 2008; substantive revision Fri Aug 14, 2020 In many Western jurisdictions the law presumes that adult persons, and sometimes children that meet certain criteria, are capable of making their own medical decisions; for example, consenting to a particular medical treatment, or consenting to participate in a research trial. But what exactly does it mean to say that a subject has or lacks the requisite capacity to decide? This question has to do with what (...) is commonly called “decisional capacity”, a central concept in health care law and ethics, and increasingly an independent topic of philosophical inquiry. -/- Decisional capacity can be defined as the ability of subjects to make their own medical decisions. Somewhat similar questions of capacity arise in other contexts, such as capacity to stand trial in a court of law and the ability to make decisions that relate to personal care and finances. However, the history behind the more general legal notions of capacity to stand trial and capacity to manage one’s life is different and operates somewhat differently in law (Roth, Meisel, & Litz 1977; Zapf & Roesch 2005). For the purposes of this discussion the notion of decisional capacity will be limited to medical contexts only; most notably, those where decisions to consent or to refuse treatment or participation in clinical research are concerned. (shrink)

Many political philosophers argue that interference (or vulnerability to interference) threatens a person’s agency. And they cast political freedom in opposition to interpersonal threats to agency, as non-interference (or non-subjection). I argue that this approach relies on an inapt model of agency, crucial aspects of which emerge from our relationships with other people. Such relationships involve complex patterns of vulnerability and subjection, essential to our constitution as particular kinds of agents: as owners of property, as members of families, and as (...) participants in a market for labor. We should construct a conception of freedom that targets the structures of our interpersonal relations, and the kinds of agents these relations make us. Such a conception respects the interpersonal foundations of human agency. It also allows us to draw morally significant connections between diverse species of unfreedom—between, for instance, localized domination and structural oppression. (shrink)

Autonomy is, among other things, an actual psychological condition, a capacity that can be developed, and an educational ideal. This paper contextualises, analyses, criticises and extends the theory of Richard S. Peters on these three aspects of autonomy.

Cloud computing is rapidly gaining traction in business. It offers businesses online services on demand (such as Gmail, iCloud and Salesforce) and allows them to cut costs on hardware and IT support. This is the first paper in business ethics dealing with this new technology. It analyzes the informational duties of hosting companies that own and operate cloud computing datacenters (e.g., Amazon). It considers the cloud services providers leasing ‘space in the cloud’ from hosting companies (e.g, Dropbox, Salesforce). And it (...) examines the business and private ‘clouders’ using these services. The first part of the paper argues that hosting companies, services providers and clouders have mutual informational (epistemic) obligations to provide and seek information about relevant issues such as consumer privacy, reliability of services, data mining and data ownership. The concept of interlucency is developed as an epistemic virtue governing ethically effective communication. The second part considers potential forms of government restrictions on or proscriptions against the development and use of cloud computing technology. Referring to the concept of technology neutrality, it argues that interference with hosting companies and cloud services providers is hardly ever necessary or justified. It is argued, too, however, that businesses using cloud services (banks, law firms, hospitals etc. storing client data in the cloud, e.g.) will have to follow rather more stringent regulations. (shrink)

Legal restrictions of the right to self-determination increasingly pretend to be compatible with the liberal concept of autonomy: they act upon a ‘soft’ or autonomy-orientated paternalistic rationale. Conventional liberal critique of paternalism turns out to be insensitive to the intricate normative problems following from ‘soft’ or ‘libertarian’ paternalism. In fact, these autonomy-oriented forms of paternalism could actually be even more problematic and may infringe liberty rights even more intensely than hard paternalistic regulation. This paper contributes to the systematic differentiation of (...) soft and hard paternalism by discussing the (legal) concept of autonomy and elaborates the moral and legal limits of autonomy-orientated paternalism. (shrink)

In many Western jurisdictions, the law presumes that adult persons, and sometimes children that meet certain criteria, are capable of making their own health care decisions; for example, consenting to a particular medical treatment, or consenting to participate in a research trial. But what exactly does it mean to say that a subject has or lacks the requisite capacity to decide? This last question has to do with what is commonly called “decisional capacity,” a central concept in health care law (...) and ethics, and increasingly an independent topic of philosophical inquiry. (shrink)

Many philosophers conceive of freedom as non-interference. Such conceptions unify two core commitments. First, they associate freedom with non-constraint. And second, they take seriously a distinction between the interpersonal and the non-personal. As a result, they focus our attention exclusively on constraints attributable to other people’s choices – that is, on interference. I argue that these commitments manifest two distinct concerns: first, for a wide range of options; and second, for other people’s respect. However, construing freedom as non-interference unifies these (...) concerns in a way that does justice to neither. In particular, it focuses our attention on phenomena that are at best tangential, and at worst hostile, to our interest in respect. If we wish to preserve the distinctive significance of the interpersonal, we would be better served by a conception of freedom that focuses immediately on what I call "the social conditions of respect.". (shrink)

Recent liberal moral and political philosophy has placed great emphasis on the good of self-respect. But it is not always evident what is involved in self-respect, nor is it evident how societies can promote it. Assuming that self-respect is highly desirable, I begin by considering how people can live in a self-respecting fashion, and I argue that autonomous envisaging and fulfillment of one's own life plans is necessary for self-respect. I next turn to the question of how societal implementation of (...) rights may affect self-respect, and I urge that discretionary rights, which allow people to decline the benefits they confer, support self-respect more effectively than mandatory rights, which forbid people to refuse the benefits they confer. I conclude by examining the import of these contentions for feminist theory. I believe that my arguments are of particular concern to women because women have traditionally been victimized by a mandatory right to play a distinctively "feminine" role which has undermined their self-respect. (shrink)

I apply the Zhuangzi 莊子 to assess the contemporary value of personal autonomy. Focusing on two concepts, wuwei 無為 and you 遊, I clarify the “wandering ideal” in the Zhuangzi to challenge the ideal of autonomy as central to a well-lived life. Drawing on Sneddon’s persuasive recent account of autonomy, the Inner Chapters of the Zhuangzi, as well as recent secondary scholarship on the text, I show that the wandering ideal suggests a stark move away from the controlled and self-reflective (...) life of the autonomous person. My goal is to draw on the Zhuangzi to contribute to dialogue on the ideal of autonomy, rather than to provide an innovative way of reading the Zhuangzi. I argue that both autonomy and wandering are higher-order ideals that can be applied to individual actions and to a person’s form of life, but at both levels, wandering and personal autonomy are in tension. The conclusion briefly reflects on the significance of the tension. (shrink)

An ideal of education is to ensure that our children develop into autonomous critical thinkers. The ‘indoctrination objection’, however, calls into question whether education, aimed at cultivating autonomous critical thinkers, is possible. The core of the concern is that since the young child lacks even modest capacities for assessing reasons, the constituent components of critical thinking have to be indoctrinated if there is to be any hope of the child's attaining the ideal. Our primary objective is to defuse this objection. (...) We argue, first, that even if the indoctrination objection can be dealt with at the level of beliefs by an account that distinguishes between beliefs instilled in the child at the non‐rational stage that are indoctrinative and those that are non‐indoctrinative, there can be non‐autonomous ‘proto critical thinkers’ who lack autonomy with respect to the requisite motivational components. We then ask what must be added to the account to ensure that proto critical thinkers develop into autonomous ones. We suggest that motivational elements, even if instilled at a stage at which the child has insufficiently developed cognitive capacities, can be ‘truly the child's own’ only relationally: the autonomous motivational elements are ones with respect to which the future child is self‐governing. (shrink)

This article argues that Buddhists can consistently support autonomy as an educational ideal. The article defines autonomy as a matter of thinking and acting according to principles that one has oneself endorsed, showing the relationship between this ideal and the possession of an enduring self. Three central Buddhist doctrines of conditioned arising, impermanence and anatman are examined, showing a prima facie conflict between autonomy and Buddhist philosophy. Drawing on the ‘two truths’ theory of Nagarjuna, it is then shown that the (...) prima facie conflict can be defused by noting that the self has reality at one level, but is a fiction at another level. This approach allows us a new way of seeing autonomy as an extrinsic value—as a step in the journey towards nirvana, but of no value once one has achieved nirvana. (shrink)

This paper addresses three questions raised by recent literature on the concept of ‘autonomy’. (I) Should the value of autonomy more properly be seen as a moral constraint or as a goal of action? (2) Is autonomy either possible or desirable, given the ways in which human beings are located within a situation and a community? (3) If autonomy is a desirable goal, is it a universal value or merely one appropriate to modern liberal-democratic societies? Use is made of the (...) distinction between ‘weak’ and ‘strong’ versions of the concept of ‘autonomy’, which helps to provide an answer to the first question. It is also important, however, to recognise the continuity between the weak and strong versions, and this recognition helps to supply answers to the second and third questions. (shrink)

An ideal of education is to ensure that our children develop into autonomous critical thinkers. The ‘indoctrination objection’, however, calls into question whether education, aimed at cultivating autonomous critical thinkers, is possible. The core of the concern is that since the young child lacks even modest capacities for assessing reasons, the constituent components of critical thinking have to be indoctrinated if there is to be any hope of the child's attaining the ideal. Our primary objective is to defuse this objection. (...) We argue, first, that even if the indoctrination objection can be dealt with at the level of beliefs by an account that distinguishes between beliefs instilled in the child at the non‐rational stage that are indoctrinative and those that are non‐indoctrinative, there can be non‐autonomous ‘proto critical thinkers’ who lack autonomy with respect to the requisite motivational components. We then ask what must be added to the account to ensure that proto critical thinkers develop into autonomous ones. We suggest that motivational elements, even if instilled at a stage at which the child has insufficiently developed cognitive capacities, can be ‘truly the child's own’ only relationally: the autonomous motivational elements are ones with respect to which the future child is self‐governing. (shrink)

Because of the emphasis on individualism and self-governance, medical interventions and medical research in Western nations are preceded by attempts to obtain informed consent from the individual patient or potential research subject. Individual autonomy expresses our belief that persons are ends in themselves and not merely instrumentalities to achieve the goals of others. By respecting the patient or potential research subject in the context of medical decisionmaking, we acknowledge that these individuals are moral agents. Thus, individual autonomy is an important (...) feature of morality as it is practiced in the West. However, there are at least two circumstances in which individual autonomy appears to be threatened. One is embodied in nonwestern societies that favor collective decisionmaking over that of the individual. The other is related to the need for family histories and family testing to determine the susceptibility of family members to some genetically based disease. In both cases, individual judgment appears to be made subordinate to collective judgment. (shrink)

Our primary focus is on analysis of the concept of voluntariness, with a secondary focus on the implications of our analysis for the concept and the requirements of voluntary informed consent. We propose that two necessary and jointly sufficient conditions must be satisfied for an action to be voluntary: intentionality, and substantial freedom from controlling influences. We reject authenticity as a necessary condition of voluntary action, and we note that constraining situations may or may not undermine voluntariness, depending on the (...) circumstances and the psychological capacities of agents. We compare and evaluate several accounts of voluntariness and argue that our view, unlike other treatments in bioethics, is not a value-laden theory. We also discuss the empirical assessment of individuals? perceptions of the degrees of noncontrol and self-control. We propose use of a particular Decision Making Control Instrument. Empirical research using this instrument can provide data that will help establish appropriate policies and procedures for obtaining voluntary consent to research. (shrink)

Understanding ownership rights is necessary for socially appropriate behavior. We provide evidence that preschoolers' and adults' judgments of ownership rights are related to their judgments of bodily rights. Four-year-olds and adults evaluated the acceptability of harmless actions targeting owned property and body parts. At both ages, evaluations did not vary for owned property or body parts. Instead, evaluations were influenced by two other manipulations—whether the target belonged to the agent or another person, and whether that other person approved of the (...) action. Moreover, these manipulations influenced judgments for owned objects and body parts in the same way: When the other person approved of the action, participants' judgments were positive regardless of who the target belonged to. In contrast, when that person disapproved, judgments depended on who the target belonged to. These findings show that young children grasp the importance of approval or consent for ownership rights and bodily rights, and likewise suggest that people's notions of ownership rights are related to their appreciation of bodily rights. (shrink)

:Freedom is often analysed in terms of the absence of intentionally imposed constraints. I defend the alternative view on which the relevant constraints are those for which some agent can be held morally responsible. I argue that this best captures the relation between freedom and respect. Berlin correctly points out that intentional restrictions exhibit ill will and hence are disrespectful. However, the same holds, I argue, for restrictions that are due to indifference. Berlin also observed that it would be counterintuitive (...) if an agent could increase her freedom by changing her preferences. I criticize the argument that Dowding and Van Hees present according to which this observation counts in favour of explicating freedom in terms of intentionality. (shrink)

The concept of rights is now so dominant in the language of politics that it is becoming difficult to identify its use with any particular approach to the solution of social problems or to gain a clear picture of its significance, its advantages and its disadvantages as a way of conceptualizing and resolving contentious political issues. None the less there is a perceptible shift towards an emphasis on rights in contemporary politics which many welcome and encourage and others question and (...) even reject, a shift which is matched in jurisprudence by the renewed stress which many theorists place on rights as a basic legal concept despite recurrent problems associated with the concept as a tool for legal analysis and moral justification. Conflicting theories of legal rights are canvassed and this in turn feeds into the debate concerning the reality or significance of non-legal rights, for the process of law reform is often presented as a matter of giving legal embodiment to the rights which various interested categories of people are asserted to possess already. (shrink)

In this article, I distinguish personal autonomy from heteronomy, and consider whether autonomy provides a suitable basis for liberalism. I argue that liberal government should not promote autonomy in all its citizens, on the grounds that not all members of liberal democracies require autonomy for a good life. I then outline an alternative option that I call a liberalism of conscience, describing how it better respects heteronomous citizens. I subsequently clarify how a liberalism of conscience is different than, and superior (...) to, autonomy‐based versions of liberalism. (shrink)