According to what members of our research team (Scholten and Gather 2017) have proposed to call “the competence model,” competence is a necessary condition for informed consent. This model entails...

According to what we propose to call “the competence model,” competence is a necessary condition for valid informed consent. If a person is not competent to make a treatment decision, the decision must be made by a substitute decision-maker on her behalf. Recent reports of various United Nations human rights bodies claim that article 12 of the Convention on the Rights of Persons with Disabilities involves a wholesale rejection of this model, regardless of whether the model is based on a (...) status, outcome, or functional approach to competence. The alleged rationale of this rejection is that denying persons the right to make their own treatment decisions based on an assessment of competence necessarily discriminates against persons with mental disorders. Based on a philosophical account of the nature of discrimination, we argue that a version of the competence model that combines supported decision-making with a functional approach to competence does not discriminate against persons with mental disorders. Furthermore, we argue that status- and outcome-based versions of the competence model are discriminatory. (shrink)

The chapter traces the history of psychiatric ethics with a focus on the emergence of autonomy and how assumptions and thresholds surrounding informed consent and decision-making capacity have changed over the centuries. Innovators like Philippe PInel and William Tuke are featured in this account of how the 'mad' and the abuses of the 'domestication paradigm' of madness eventually gave way to more humanitarian approaches of treating the 'mad', like moral treatment. The chapter closes with a brief reflection regarding the limits (...) of autonomy and the decline of paternalism in psychiatric ethics. (shrink)

Aryeh Goldberg compellingly argues for a Narrative Coherence Standard (NCS) to bolster existing methods of assessing patients' mental capacity. But his account fails to distinguish between the cognitive abilities of children and adults; consequently, worries may be raised about the scope of the NCS, in particular when we consider child patients. In this article, I argue the NCS cannot plausibly apply to children. Since children's self-conception does not arrive fully formed — but rather is a product of both incomplete cognitive (...) development and socializing factors — I claim children may not possess a sufficiently intimate knowledge of self, and therefore a sufficiently coherent sense of self, as Goldberg demands. Therefore, we should either revise the NCS to accommodate children, adopt an incremental view of consent, or revert to the relevant form of the MacArthur competence criteria to establish children’s capacity to consent. (shrink)

Background Compulsory treatments represent a legal means of imposing treatment on an individual, usually with a mental illness, who refuses therapeutic intervention and poses a risk of self-harm or harm to others. Compulsory outpatient treatment in psychiatry, also known as community treatment order, is a modality of involuntary treatment that broadens the therapeutic imposition beyond hospitalization and into the community. Despite its existence in over 75 jurisdictions worldwide, COT is currently one of the most controversial topics in psychiatry, and it (...) presents significant ethical challenges. Nonetheless, the ethical debate regarding compulsory treatment almost always stops at a preclinical level, with the different ethical positions arguing for or against its use, and there is little guidance to support for the individual clinicians to act ethically when making the decision to implement COT. Main body The current body of evidence is not clear about the efficacy of COT. Therefore, despite its application in several countries, evidence favouring the use of COT is controversial and mixed at best. In these unclear circumstances, ethical guidance becomes paramount. This paper provides an ethical analysis of use of COT, considering the principlist framework established by Ross Upshur in 2002 to justify public health interventions during the 2002–2004 severe acute respiratory syndrome outbreak. This paper thoroughly examines the pertinence of using the principles of harm, proportionality, reciprocity, and transparency when considering the initiation of COT. Conclusion Ross Upshur’s principlist model provides a useful reflection tool for justifying the application of COT. This framework may help to inform sounder ethical decisions in clinical psychiatric practice. (shrink)

Obtaining consent for medical treatment in older adults raises a number of complex challenges. Despite being required by ethics and the law, consent for medical treatment is not always validly sought in this population. The dynamic nature of capacity, particularly in individuals who have dementia or other cognitive impairments, adds complexity to obtaining consent. Further challenges arise in ensuring that older people comprehend the medical treatment information provided and that consent is not vitiated by coercion or undue influence. Existing mechanisms (...) to address issues surrounding consent for older adults only address incapacity and raise further challenges. As the ageing population increases, these issues are likely to become more profound, thus action is required to address these challenges. Raising awareness, more education, engaging with people with dementia, and conducting further research would assist in beginning to overcome these challenges. (shrink)

Crutchfield and Redinger (2024) propose that the use of a chemical restraint that affects only a particular conscious state is ethically permissible if, and only if, (1) it is the least restrictive...

Hastings Center Report, Volume 52, Issue 2, Page 4-6, March‐April 2022.

This paper explores and ultimately affirms the surprising claim that artificial intelligence (AI) can become part of the person, in a robust sense, and examines three ethical and legal implications. The argument is based on a rich, legally inspired conception of persons as free and independent rightholders and objects of heightened protection, but it is construed so broadly that it should also apply to mainstream philosophical conceptions of personhood. The claim is exemplified by a specific technology, devices that connect human (...) brains with computers and operate by AI-algorithms. Under philosophically reasonable and empirically realistic conditions, these devices and the AI running them become parts of the person, in the same way as arms, hearts, or mental capacities are. This transformation shall be called empersonification. It has normative and especially legal consequences because people have broader and stronger duties regarding other persons (and parts of them) than regarding things. Three consequences with practical implications are: (i) AI-devices cease to exist as independent legal entities and come to enjoy the special legal protection of persons; (ii) therefore, third parties such as manufacturers or authors of software lose (intellectual) property rights in device and software; (iii) persons become responsible for the outputs of the empersonified AI-devices to the same degree that they are for desires or intentions arising from the depths of their unconscious. More generally, empersonification marks a new step in the long history of human–machine interaction that deserves critical ethical reflection and calls for a stronger value-aligned development of these technologies. (shrink)

This paper explores and ultimately affirms the surprising claim that artificial intelligence (AI) can become part of the person, in a robust sense, and examines three ethical and legal implications. The argument is based on a rich, legally inspired conception of persons as free and independent rightholders and objects of heightened protection, but it is construed so broadly that it should also apply to mainstream philosophical conceptions of personhood. The claim is exemplified by a specific technology, devices that connect human (...) brains with computers and operate by AI-algorithms. Under philosophically reasonable and empirically realistic conditions, these devices and the AI running them become parts of the person, in the same way as arms, hearts, or mental capacities are. This transformation shall be called empersonification. It has normative and especially legal consequences because people have broader and stronger duties regarding other persons (and parts of them) than regarding things. Three consequences with practical implications are: (i) AI-devices cease to exist as independent legal entities and come to enjoy the special legal protection of persons; (ii) therefore, third parties such as manufacturers or authors of software lose (intellectual) property rights in device and software; (iii) persons become responsible for the outputs of the empersonified AI-devices to the same degree that they are for desires or intentions arising from the depths of their unconscious. More generally, empersonification marks a new step in the long history of human–machine interaction that deserves critical ethical reflection and calls for a stronger value-aligned development of these technologies. (shrink)

Background Best interests is a ubiquitous principle in medical policy and practice, informing the treatment of both children and adults. Yet theory underlying the concept of best interests is unclear and rarely articulated. This paper examines bioethical literature for theoretical accounts of best interests to gain a better sense of the meanings and underlying philosophy that structure understandings. Methods A scoping review of was undertaken. Following a literature search, 57 sources were selected and analysed using the thematic method. Results Three (...) themes emerged. The first placed best interests within the structure of wider theory, noting relationships with consequentialism, deontology, prudential value theory, rights and political philosophy. The second mapped a typology of processes of decision-making, among which best interests was ambiguously positioned. It further indicated factors that informed best interests decision-making, primarily preferences, dignity and quality of life. The final theme considered best interests from a relational perspective. Conclusions Characterisation of best interests as strictly paternalist and consequentialist is questionable: while accounts often suggested a consequentialist basis for best interests, arguments appeared philosophically weak. Deontological accounts, found in law and Kantianism, and theories of political liberalism influenced accounts of best interests, with accounts often associating best interests with negative patient preferences (i.e. individual refusals). There was much more emphasis on negative interests than positive interests. Besides preference, factors like dignity and quality of life were held to inform best interests decisions, but generally were weakly defined. To the extent that preferences were unable to inform decision making, decisions were either made by proxy authority or by an intersubjective process of diffuse authority. Differing approaches reflect bifurcations in liberal philosophy between new liberalism and neo-liberalism. Although neither account of authority appears dominant, bias to negative interests suggests that bioethical debate tends to reflect the widespread ascendancy of neo-liberalism. This attitude was underscored by the way relational accounts converged on private familial authority. The visible connections to theory suggest that best interests is underpinned by socio-political trends that may set up frictions with practice. How practice negotiates these frictions remains a key question. (shrink)

Assent to medical research or treatment may be an intuitively attractive way to address the area between incapacity and capacity that might otherwise be subject to a best interests assessment. Assent has become a widely disseminated concept in law, research, and clinical ethics, but little conceptual work on assent has so far occurred. An exploration of use of assent in treatment and research in children and people with dementia suggests that at least five claims are made on behalf of assent. (...) Since at least some of these may lead to tensions with others, assent requires firmer conceptual underpinning. Whether assent remains primarily a local approach to research in children in the United States, where it appears to fit with legal background conditions, or develops its promise to overturn the dominant, binary, approach to (in)capacity will depend on the strength of future philosophical work to improve the theoretical foundations to assent. (shrink)

The application of human right frameworks is an increasingly important part of efforts to accelerate progress in global mental health. Much of this has been driven by several influential legal and policy instruments, most notably the United Nations’ Convention on the Rights of Persons with Disabilities, as well as the World Health Organization’s QualityRights Tool Kit and Mental Health Action Plan. Despite these significant developments, however, much more needs to be done to prevent human rights violations. This chapter focuses on (...) a critical component of this broader challenge, which is the question of how best to regulate and reduce the use of coercive measures. The recent literature on coercion in psychiatry – which addresses involuntary commitment, seclusion, restraint, and forced medication – represents a useful resource that can help guide tractable solutions in global mental health. These issues are evaluated from the perspective of global health governance, and several general recommendations are made in order to improve monitoring and enforcement, provide guidance for domestic legislative reform, and strengthen health systems. (shrink)

Controversial cases in medical ethics are, by their very nature, divisive. There are disagreements that revolve around questions of fact or of value. Ethical debate may help in resolving those disagreements. However, sometimes in such cases, there are opposing reasonable views arising from deep-seated differences in ethical values. It is unclear that agreement and consensus will ever be possible. In this paper, we discuss the recent controversial case of Vincent Lambert, a French man, diagnosed with a vegetative state, for whom (...) there were multiple court hearings over a number of years. Both family and health professionals were divided about whether artificial nutrition and hydration should be withdrawn and Lambert allowed to die. We apply a ‘dissensus’ approach to his case and argue that the ethical issue most in need of scrutiny is different from the one that was the focus of attention. (shrink)

The fourth amendment to the German Medicinal Products Act (Arzneimittelgesetz) states that nontherapeutic research in incompetent populations is permissible under the condition that potential research participants expressly declare their wish to participate in scientific research in an advance research directive. This article explores the implementation of advance research directives in Germany against the background of the international legal and ethical framework for biomedical research. In particular, it addresses a practical problem that arises from the disclosure requirement for advance research directives. (...) We show that, if the disclosure standard for advance research directives is set at a token level, nontherapeutic research in incompetent populations becomes practically impossible. To resolve this issue, we suggest the disclosure standard be set at a type level. (shrink)

The history of the recovery movement began with a pushback against treatment, and the philosophies that it was founded upon still have relevant applications to contemporary social work practice. Financial aspects of service provision for people with serious mental illnesses have enabled other actors in the medical model of psychosis treatment to benefit, while disempowering and dehumanizing the consumers of those services. Since then, other movements like Psychopolitics and the Mad Movement have helped empower psychosis survivors to advocate for their (...) right to self-determination amid the epistemological pressure to identify as disabled. Social workers would like to believe that the field has moved beyond the philosophies that perpetuated institutionalization of people with serious mental illnesses. Contemporary examples, however, reveal how social services in the US maintain the status quo of sanism for psychosis survivors. (shrink)

In a compelling article, Peterson, Karlawish and Largent argue that supported decision-making is preferable to substitute decision-making for people with dynamic impairments. We fully...