An important philosophical issue in the study of addiction is what difference the fact that a person is addicted makes to attributions of autonomy (and responsibility) to their drug-oriented behavior. In spite of accumulating evidence suggesting the role of emotional dysregulation in understanding addiction, it has received surprisingly little attention in the debate about this issue. I claim that, as a result, an important aspect of the autonomy impairment of many addicted individuals has been largely overlooked. A widely shared assumption (...) in the philosophical literature is that for addiction to impair a person’s autonomy it has to make them (in some sense) take drugs against their will. So-called “willing addicts” are therefore usually seen as exempted from the autonomy impairment believed to characterize “unwilling addicts”, the latter being those who ‘truly want’ to stop using drugs but find their attempts repeatedly derailed by failures of self-control. In this article, I argue that the association between addiction and emotional dysregulation shows why this assumption is false. Emotional dysregulation is not only consistent with the possibility that many addicts take drugs ‘willingly’, it supports the hypothesis that they use drugs because they truly want to. The article proposes an explanation for why emotional dysregulation should nevertheless be seen as an aspect of their loss of control and an important reason why they have impaired autonomy. I end by exploring some implications of this account for addict’s decision-making capacity when they are prescribed the drugs to which they are addicted. -/- . (shrink)

This article advances two views on the role of evaluative judgment in clinical assessments of decision-making capacity. The first is that it is rationally impossible for such assessments to exclude judgments of the values a patient uses to motivate their decision-making. Predictably, and second, attempting to exclude such judgments sometimes yields outcomes that contain intractable dilemmas that harm patients. These arguments count against the prevailing model of assessment in common law countries—the four abilities model—which is often incorrectly advertised as being (...) value-neutral in respect of patient decision-making both by its proponents and in statute. A straightforward evaluative model of capacity assessment which wears its values on its sleeves and is biased against what are called ‘serious prudential mistakes’ avoids these rational and practical problems. (shrink)

Charland's article suggests that we need to think more about whether decision-making capacity is impaired in severe addiction, working from the idea that drug dealers rely on this understanding of addiction to draw in their clients. Charland argues that it is possible to make a choice without being in control (to make decisions without having decision-making capacity). I argue in support of Charland's ideas by examining the reasons supporting a medical model of addiction and its importance. (For Charland's article and (...) the full set of commentaries, please see the Research Gate link). (shrink)

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)

It is sometimes argued that autonomous decision-making requires that the decision-maker’s desires are authentic, i.e., “genuine,” “truly her own,” “not out of character,” or similar. In this article, it is argued that a method to reliably determine the authenticity (or inauthenticity) of a desire cannot be developed. A taxonomy of characteristics displayed by different theories of authenticity is introduced and applied to evaluate such theories categorically, in contrast to the prior approach of treating them individually. The conclusion is drawn that, (...) in practice, the authenticity of desires cannot be reliably determined. It is suggested that authenticity should therefore not be employed in informed consent practices in healthcare. (shrink)

In this paper I get clearer on the considerations that ought to inform the evaluation and development of medico-legal competency criteria—where this is taken to be a question regarding the abilities that ought to be needed for a patient to be found competent in medico-legal contexts. In the “Decisional Competency in Medico-Legal Contexts” section I explore how the question regarding the abilities that ought to be needed for decisional competence is to be interpreted. I begin by considering an interpretation that (...) takes the question to be asking about the abilities needed to satisfy an idealized view of competent decision-making, according to which decisional competency is a matter of possessing those abilities or attributes that are needed to engage in good or effective or, perhaps, substantially autonomous or rational decision-making. The view has some plausibility—it accords with the way decisional competency is understood in a number of everyday contexts—but fails as an interpretation of the question regarding the abilities that should be needed for decisional competence in medico-legal contexts. Nevertheless, consideration of why it is mistaken suggests a more accurate interpretation and points the way in which the question regarding the evaluation of medico-legal competency criteria is to be answered. Building on other scholarly work in the area, I outline in the “Primary and Secondary Requirements” section several requirements that decisional competence criteria ought to satisfy. Then, in the “Applying the Framework” section, I say something about the extent to which medico-legal competency criteria, as well as some models of decisional competency proposed in the academic literature, fulfil those requirements. (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)

In this article, I argue that persons suffering from Body Integrity Identity Disorder (BIID) can give informed consent to surgical measures designed to treat this disorder. This is true even if the surgery seems radical or irrational to most people. The decision to have surgery made by a BIID patient is not necessarily coerced, incompetent or uninformed. If surgery for BIID is offered, there should certainly be a screening process in place to insure informed consent. It is beyond the scope (...) of this work, however, to define all the conditions that should be placed on the availability of surgery. However, I argue, given the similarities between BIID and gender dysphoria and the success of such gatekeeping measures for the surgical treatment of gender dysphoria, it is reasonable that similar conditions be in place for BIID. Once other treatment options are tried and gatekeeping measures satisfied, A BIID patient can give informed consent to radical surgery. (shrink)

The notion that patients’ medical decision-making capacity depends on risk considerations has some acceptance in the bioethical literature. However, it arouses some criticism since it seems to give rise to paternalistic attitudes. In addition, the idea of capacity assessment as a collaborative space in which aid is given to the patient is emphasized so that they can decide about their life. It does not seem ethically acceptable to pose the evaluation as a simple observer report. Capacity assessment can sometimes be (...) impossible or inconsequential. In short, capacity assessment is a procedure that, used wisely, can allow the patient to take charge of their life. Misused, it can be the gateway to unjustified paternalistic actions. (shrink)

In this article, I present an argument that suggests neuroscience should inform judgments of decision-making capacity. First, I review key behavioral and neurocognitive data to demonstrate that neuroscientific tests might be predictive of decision-making capacity, and that these tests might inform clinical judgments of capacity. Second, I argue that, consistent with the principles of autonomy and justice, such data should inform judgements of decision-making capacity. While the neuroscience of decision-making capacity still requires time to mature, there is strong reason to (...) believe that neuroscience might assist clinicians in adjudicating difficult cases in the future. This article focuses on the assessment of capacity in brain injury patients who have profound communication impairments, however, the overarching aim of the article is to highlight the potential use of neuroscience to improve our understanding of the relationship between cognition and decision-making capacity. (shrink)

Whether adolescents should be allowed to make their own medical decisions has been a topic of discussion in bioethics for at least two decades now. Are adolescents sufficiently capacitated to make their own medical decisions? Is the mature-minor doctrine, an uncommon legal exception to the rule of parental decision-making authority, something we should expand or eliminate? Bioethicists have dealt with the curious liminality of adolescents—their being neither children nor adults—in a variety of ways. However, recently there has been a trend (...) to rely heavily, and often exclusively, on emerging neuroscientific and psychological data to answer these questions. Using data from magnetic resonance imaging and functional MRI studies on the adolescent brain, authors have argued both that the adolescent brain isn't sufficiently mature to broadly confer capacity on this population and that the adolescent brain is sufficiently mature to assume adolescent capacity. Scholars then accept these data as sufficient for concluding that adolescents should or should not have decision-making authority. Two critical mistakes are being made here. The first is the expectation that neuroscience or psychology is or will be able to answer all our questions about capacity. The second, and more concerning, mistake is the conflation of decision-making capacity with decision-making authority. (shrink)

Decision-making capacity (DMC) is the gatekeeping element for a patient’s right to self-determination with regard to medical decisions. A DMC evaluation is not only conducted on descriptive grounds but is an inherently normative task including ethical reasoning. Therefore, it is dependent to a considerable extent on the values held by the clinicians involved in the DMC evaluation. Dealing with the question of how to reasonably support clinicians in arriving at a DMC judgment, a new tool is presented that fundamentally differs (...) from existing ones: the U-Doc. By putting greater emphasis on the judgmental process rather than on the measurement of mental abilities, the clinician as a decision-maker is brought into focus, rendering the tool more of an evaluation guide than a test instrument. In a qualitative study, the perceived benefits of and difficulties with the tool have been explored. The findings show on the one hand that the evaluation aid provides basic orientation, supports a holistic perspective on the patient, sensitizes for ethical considerations and personal biases, and helps to think through the decision, to argue, and to justify one’s judgment. On the other hand, the room for interpretation due to absent operationalisations, related ambiguities, and the confrontation with one’s own subjectivity may be experienced as unsettling. (shrink)

Severe brain injury is a leading cause of death and disability. Following severe brain injury diagnosis is difficult and errors frequently occur. Recent findings in clinical neuroscience may offer a solution. Neuroimaging has been used to detect preserved cognitive function and awareness in some patients clinically diagnosed as being in a vegetative state. Remarkably, neuroimaging has also been used to communicate with some vegetative patients through a series of yes/no questions. Some have speculated that, one day, this method may allow (...) severely brain-injured patients to make medical decisions. Yet, skepticism is rife, due in part to the inherent difficulty of assessing decision-making capacity through neuroimaging communication. In this thesis, I provide the first systematic analysis of this problem. I present and defend a strategy for assessing decision-making capacity in brain-injured patients who can only communicate through neuroimaging. (shrink)