A key objective of the law in the assessment of decision-making capacity in clinical settings is to allow clinicians and judges to avoid making value judgements about the reasons that patients use to refuse treatment. This paper advances two lines of argument in respect of this objective. The first is that authorities cannot rationally avoid significant evaluative judgements in the assessment of a patient’s own assessment of the facts of their case. Assessing reasoning is unavoidably value-laden. Yet the underlying motivation (...) behind clinicians’ and the law’s value-neutral aims, ie, the avoidance of undue paternalism, is worth preserving. That being so, the second line of argument will try to show that that underlying motivation is better served in a limited range of cases by embedding a ‘reversibility standard’ in the assessment process so that the patient can, if they wish, and in due course, bring about the consequences that they were prevented from realising as a result of a determination of incapacity. (shrink)

Volume 24, Issue 8, August 2024, Page 119-120.

Patients with mental illness, and depression in particular, present clinicians and surrogate decision-makers with complex ethical dilemmas when they refuse life-sustaining non-psychiatric treatment. When treatment rejection is at variance with the beliefs and preferences that could be expected based on their premorbid or “authentic” self, their capacity to make these decisions may be called into question. If capacity cannot be demonstrated, medical decisions fall to surrogates who are usually advised to decide based on a substituted judgment standard or, when that (...) is not possible, best interest. We propose that in cases where the patient meets the widely accepted cognitive criteria for capacity but is making decisions that appear inauthentic, the surrogate may best uphold patient autonomy by following a “restorative representation” model. We see restorative representation as a subset of substituted judgement in which the decision-maker retains responsibility for deciding as the patient would have, but discerns the decision their “truest self” would make, rather than inferring their current wishes, which are directly influenced by illness. Here we present a case in which the patient’s treatment refusal and previously undiagnosed depression led to difficulty determining the patient’s authentic wishes and placed a distressing burden on the surrogate decision-maker. We use this case to examine how clinicians and ethicists might better advise surrogates who find themselves making these clinically and emotionally challenging decisions. (shrink)

This article examines whether social media users can validly consent to their own use of social media. It argues that, whether or not social media use is analogous to public health interventions, there is an obligation to provide users with information about risks and benefits, and absent that provision, there is no valid consent. Many or most users, in any event, do not have the capacity to consent, according to the criteria for capacity articulated in the ‘four abilities’ model: the (...) ability to express a choice, the ability to understand the facts pertinent to the decision in question, the ability of a subject to believe that the information applies to them, and the ability to reason—in the sense of being able to consider and weigh (with reference to the patient’s own concerns, circumstances, and values) the main possible outcomes of the decision to opt for the intervention and the decision to opt not to undergo it. Even if an individual social media user is capacitous according to these criteria, many will fail to be judged capacitous if (as it is argued should be the case), a further criterion, identified by Jennifer Hawkins must be satisfied, namely that the individual can look after their own interests at least as well as most other people can. It follows from this consideration that not only can regulation of social media (in the form of a ban) be justified under Mill’s harm principle, but that non-regulation cannot be justified. (shrink)

Volume 24, Issue 8, August 2024, Page 93-95.

Volume 24, Issue 8, August 2024, Page 114-116.

Volume 24, Issue 8, August 2024, Page 116-118.

Volume 24, Issue 8, August 2024, Page 88-90.

Volume 24, Issue 8, August 2024, Page 111-113.

Volume 24, Issue 8, August 2024, Page 83-85.

Volume 24, Issue 8, August 2024, Page 96-98.

Volume 24, Issue 8, August 2024, Page 127-128.

Volume 24, Issue 8, August 2024, Page 101-103.

Volume 24, Issue 8, August 2024, Page 90-93.

Volume 24, Issue 8, August 2024, Page 90-93.

Volume 24, Issue 8, August 2024, Page 121-123.

In her article, “Affect, Values and Problems Assessing Decision-Making Capacity,” Hawkins proposes a novel framework for understanding patients’ decision-making capacity, accounting for situations...

Volume 24, Issue 8, August 2024, Page 109-111.

Volume 24, Issue 8, August 2024, Page 124-126.

Volume 24, Issue 8, August 2024, Page 106-108.

Volume 24, Issue 8, August 2024, Page 103-106.