This article gives a brief introduction to the MacArthur Competence Assessment Tool-Treatment (MacCAT-T) and critically examines its theoretical presuppositions. On the basis of empirical, methodological and ethical critique it is emphasised that the cognitive bias that underlies the MacCAT-T assessment needs to be modified. On the one hand it has to be admitted that the operationalisation of competence in terms of value-free categories, e.g. rational decision abilities, guarantees objectivity to a great extent; but on the other hand it bears severe (...) problems. Firstly, the cognitive focus is in itself a normative convention in the process of anthropological value-attribution. Secondly, it misses the complexity of the decision process in real life. It is therefore suggested that values, emotions and other biographic and context specific aspects should be considered when interpreting the cognitive standards according to the MacArthur model. To fill the gap between cognitive and non-cognitive approaches the phenomenological theory of personal constructs is briefly introduced. In conclusion some main demands for further research to develop a multi-step model of competence assessment are outlined. (shrink)

There is an important gap in philosophical, clinical and bioethical conceptions of decision-making capacity. These fields recognize that when traumatic life circumstances occur, people not only feel afraid and demoralized, but may develop catastrophic thinking and other beliefs that can lead to poor judgment. Yet there has been no articulation of the ways in which such beliefs may actually derail decision-making capacity. In particular, certain emotionally grounded beliefs are systematically unresponsive to evidence, and this can block the ability to deliberate (...) about alternatives. People who meet medico-legal criteria for decision-making capacity can react to health and personal crises with such capacity-derailing reactions. One aspect of this is that a person who is otherwise cognitively intact may be unable to appreciate her own future quality of life while in this complex state of mind. This raises troubling ethical challenges. We cannot rely on the current standard assessment of cognition to determine decisional rights in medical and other settings. We need to understand better how emotionally grounded beliefs interfere with decision-making capacity, in order to identify when caregivers have an obligation to intervene. (shrink)

Medical ethics would be better if people were taught to think more clearly about well-being or the concept of what is good for a person. Yet for a variety of reasons, bioethicists have generally paid little attention to this concept. Here, I argue, first, that focusing on general theories of welfare is not useful for practical medical ethics. I argue, second, for what I call the “theory-without-theories approach” to welfare in practical contexts. The first element of this approach is a (...) focus on examining important and relatively uncontroversial constituents of welfare as opposed to general theories. The second key element is a framework for thinking about choice in relation to welfare, a framework I refer to as “the mild objectivity framework.” I conclude with illustrations of the way in which the “theory without theories approach” can improve thinking in medicine. (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)

This book is the most comprehensive treatment available of one of the most urgent - and yet in some respects most neglected - problems in bioethics: decision-making for incompetents. Part I develops a general theory for making treatment and care decisions for patients who are not competent to decide for themselves. It provides an in-depth analysis of competence, articulates and defends a coherent set of principles to specify suitable surrogate decisionmakers and to guide their choices, examines the value of advance (...) directives, and investigates the role that considerations of cost ought to play in decisions concerning incompetents. Part II applies this theoretical framework to the distinctive problems of three important classes of individuals, many of whom are incompetent: minors, the elderly and psychiatric patients. The authors' approach combines a probing analysis of fundamental issues in ethical theory with a sensitive awareness of the concrete realities of health care institutions and the highly personal and individual character of difficult practical problems. Its broad scope will appeal to health professionals, moral philosophers and lawyers alike. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Appreciating Anorexia:Decisional Capacity and the Role of ValuesThomas Grisso (bio) and Paul S. Appelbaum (bio)Keywordscompetence, consent, anorexia, appreciation, decision makingTan and her colleagues (2006) reported that persons with anorexia nervosa typically manifest no difficulty satisfying the criteria for abilities associated with competence to consent to or refuse treatment. Their results led them to conclude that these patients generally had no problem grasping the nature of anorexia and its possible (...) consequences (understanding), typically did not have difficulty processing information when making treatment decisions (reasoning), and usually neither denied that they had a disorder nor manifested distorted beliefs about the potential consequences of treatment for the disorder.Nevertheless, these authors found, some anorexia patients said that they knew they might die and that they would rather die than suffer the alternative consequences (e.g., loss of identity, feeling of being disgusting). They point out that these beliefs, suggesting questionable competence, were not identified by the usual criteria for competence to consent to treatment. Therefore, they propose that we should consider a modification of the criteria for competence to consent to treatment. They argue for inclusion of "pathological values" as the basis for a finding of incompetence. Their notion of a pathological value (as we summarize it based on their Discussion) includes (a) a personal value (b) on which treatment refusal is based, that (c) is not authentic, and (d) is due to a mental disorder.Second, Tan and colleagues were concerned that the MacArthur Competence Assessment Tool for Treatment (MacCAT-T), currently used widely to assess competence to consent to treatment, did not seem to take values into account when examining deficits related to lack of appreciation or reasoning. They point out that most patients with anorexia nervosa in their study had "pathological values" that influenced their thinking about treatment, yet they did not obtain poor scores on the instrument's appreciation scale, which assesses whether patients deny that they have the illness or offer reasons for accepting or refusing treatment that are based on delusional premises or a serious distortion of reality. Moreover, almost all of the anorexia patients in the study obtained adequate scores on reasoning, which examines the ability to process options and consequences when weighing a treatment decision. [End Page 293]Reasons for Caution in Altering Criteria for CompetenceA fundamental step in considering Tan and her co-worker's proposal is to examine whether it is necessary to add a concept of "pathological values" to the legal construct of competence to consent to treatment. Modifying the legal doctrine of consent is important if that is needed to improve its validity or reliability. But modifications of the doctrine would have considerable costs, including a long process of producing logical and empirical evidence for its necessity, developing methods to assess the new concept, and then a process of debate, persuasion, and education to change laws, ethical guidelines, and medical training. Moreover, principles of theory building urge parsimony. A theory should employ no more concepts or assumptions than are required to account for the phenomena that the theory seeks to organize or explain. So one must be sure that modifications are truly necessary before adding complexity to the theory of decisional competence.In addition, there is an inherent danger in altering a concept like competence to consent to treatment on the basis of the study of any one mental disorder. It is not at all clear how the modification might influence findings of competence when applied to other disorders. Using a study of patients with anorexia nervosa as the impetus for changing the competence concept runs this risk. For example, anorexia is one of a class of mental disorders that is characterized by a failure to abstain from behavior (here, limiting food intake and other behaviors designed to reduce weight) that has negative consequences for the person. Other conditions in this category might include substance abuse disorders and impulse control disorders (e.g., pathological gambling). Even if one concludes that revised criteria for competence would reduce false-positive findings of competence in this group of disorders, one would have to consider carefully its impact on the full range of disabling mental conditions.Moreover, the sensitivity... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Decision-Making as a Broader ConceptJacinta O. A. Tan (bio), Anne Stewart (bio), and Tony Hope (bio)KeywordsCompetence, decision-making, capacity, anorexia nervosa, autonomy, values, identityWe thank Demian Whiting for the thoughtful critique of aspects of our paper (Tan et al. 2006a). A primary aim of our research was to provide empirical grounds on which to stimulate discussion about the nature of decision-making capacity (DMC). Whiting criticizes in particular the concept of (...) 'pathological values' that we suggested might be relevant in the assessment of DMC and in the related issue of deciding when a patient's refusal of beneficial treatment should be overridden.Whiting's central concern is with DMC. Whiting argues that the absence of pathological values should not be a criterion for DMC. We are unclear whether he is also arguing that pathological values do not provide a reason of any kind for overriding treatment refusal. At the end of the paper he writes: "we cannot justify compulsory treatment of patients who have pathological values... on the grounds that these patients lack DMC" (2009, XX). This seems to leave open the possibility that we may be able to justify compulsory treatment of patients who have pathological values on grounds other than that they lack DMC. As we wrote in our response to the discussants of our original paper, "The primary issue for us is whether the reasons for refusal to which we draw attention provide grounds for overriding refusal, and if they do how they can be characterized in such a way as to avoid the ever-present danger of simply overriding autonomy in a patient's best interests" (Tan et al. 2006b, 300).In deciding on whether to use compulsory treatment, there are other relevant factors that may need to be considered, such as the seriousness of the decision, which determines the threshold for competence. However, in this response we consider three issues. First, we argue that the current concept of DMC is by no means so clear cut or generally agreed upon as Whiting implies, and that some of the lack of clarity relates to pathological values. Second, that the concept of DMC is itself dependent on accounts of autonomy, and that it is plausible that pathological values can affect autonomy. Third, we directly consider the question of whether a coherent account of pathological values might be given based on a concept of authenticity.The Current Criteria for DMCWhiting argues that the current criteria for DMC are correct and that an additional criterion along the lines of absence of pathological values should not be added. This argument assumes that there is a clear and agreed understanding of the current criteria. We believe this is not the case for three reasons.(i) Whiting begins his account of DMC by saying that it is normally taken to include: "(1) [End Page 345] understanding (and appreciation)" (2009, 341). Already there is an area of dispute, and the use of parentheses reflects this. The concept of 'appreciation' was developed by Grisso and Applebaum (Grisso, Appelbaum, and Hill-Fotouhi 1997). It is not included in either English common law development, for example (ReC), nor in the criteria specified in the Mental Capacity Act 2005. More important, Grisso and Appelbaum in their comment on our original paper (2006) argue that our work advances thinking about 'appreciation' rather than requiring that we add new elements. The implication is that they believe that what we have called pathological values are relevant to the assessment of capacity and are already included in an account of capacity that incorporates the criterion of 'appreciation.' In our response, we argued that pathological values are not entirely captured within the account of appreciation that Grisso and Appelbaum had previously given. We do not want to revisit that issue here, but the point of relevance is that on one view (that of Grisso and Appelbaum) pathological values are already included in the current criteria for DMC as part of the concept of appreciation, whereas on Whiting's view they are not.(ii) Even if there were agreement over the wording and concepts relevant to DMC there is a further important issue: how are those concepts... (shrink)

Individuals with major depression may benefit from psychiatric treatment, yet they may refuse such treatment, sometimes because of their depression. Hence the question is raised whether such individuals are competent to refuse psychiatric treatment. The standard notion of competence to consent to treatment, which refers to expression of choice, understanding of medical information, appreciation of the personal relevance of this information, and logical reasoning, may be insufficient to address this question. This is so because major depression may not impair these (...) four abilities while it may disrupt coherence of personal preferences by changing them. Such change may be evaluated by comparing the treatment preferences of the individual during the depression to his or her treatment preferences during normal periods. If these preferences are consistent, they should be respected. If they are not consistent, or past treatment preferences that were arrived at competently cannot be established, treatment refusal may have to be overridden or ignored so as to alleviate the depression and then determine the competent treatment decision of the individual. Further study of the relation between depression and competence to refuse or consent to psychiatric treatment is required. (shrink)

When emotions are mentioned in the literature on mental competence, it is generally because they are thought to influence competence negatively; that is, they are thought to impede or compromise the cognitive capacities that are taken to underlie competence. The purpose of the present discussion is to explore the possibility that emotions might play a more positive role in the determination of competence. Using the MacArthur Treatment Competence Study as an example, it is argued that appreciation, a central theoretical concept (...) in many contemporary approaches to competence, has important emotive components that are seldom sufficiently recognized or acknowledged. If true, this means that some leading contemporary accounts of competence need to be revised in order to make more adequate provision for the positive contribution of emotion. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Anorexia and the MacCAT-T Test for Mental Competence:Validity, Value, and EmotionLouis C. Charland (bio)Keywordsmental competence, decisional capacity, anorexia, value, emotionValidity of the MacCAT-THow does one scientifically verify a psychometric instrument designed to assess the mental competence of medical patients who are asked to consent to medical treatment? Aside from satisfying technical requirements like statistical reliability, results yielded by such a test must conform to at least some accepted pretheoretical (...) desiderata; for example, determinations of competence, as measured by the test, must capture a minimal core of accepted basic intuitions about what competence means and what a theory of competence is supposed to do. The concepts of "face validity" and "content validity" are both important here. Face validity "indicates that an instrument appears to test what it is supposed to and that it is a plausible method for doing so" (Portney and Watkins 2000, 82). Content validity "means that the test contains all the elements that reflect the variable being studied" (Portney and Watkins 2000, 83). An adequate instrument for measuring mental competence must at minimum satisfy both of these requirements.What Tan and her colleagues (2006) have shown is that the MacArthur Competence Assessment Tool—Treatment (MacCAT-T) test for mental competence may not be an empirically valid measure of mental competence for some cases of anorexia. The data they report show that "competence," as measured by the MacCAT-T, does not conform sufficiently well with what is wanted of a clinical medical theory of competence. More specifically, the MacCAT-T is deficient in both face and content validity. This result is extremely significant; previous challenges to the validity of the MacCAT-T have often been largely theoretical in nature. My own objection that the MacCAT is inadequate because it omits the influence of emotion is based on a combination of empirical theory (Charland 1998a) and philosophical argument (Charland 1998b). However, it is entirely theoretical in nature. So is my argument that in ignoring emotion the MacCAT misses a crucial contributing ingredient in competence, namely, value (Charland 2001, see especially 136 note 2). Tan's study provides valuable empirical evidence for the second of these challenges, which deals more specifically with value. On the one hand, the study clearly demonstrates that patients sometimes do [End Page 283] base their treatment decisions on reasons derived from values. And on the other hand, it also nicely illustrates the centrality of values—"utilities" or "preferences"—in the decision-making process generally; a basic assumption of standard decision theory for which, paradoxically, there appears to be no satisfactory counterpart in the MacCAT-T model of reasoning and decision making.Thus, values figure among the reasons that patients actually use in reasoning when they weigh the risks and benefits of proposed treatment options. The MacCAT-T must be amended to incorporate this fact if it is to be a satisfactory clinical medical tool. Without such a correction, the concept of mental competence it measures is empirically invalid. At the root of the problem is a clash of intuitions. Tan's data provide convincing evidence that some of the patients who are deemed to be mentally competent by MacCAT-T standards should not in fact be considered competent. Note that the language in which this clash is expressed—"should not in fact"—involves a combination of descriptive and prescriptive elements, reminding us that the concept of competence is dual in nature: it is both prescriptive and descriptive (Freedman 1981). These problems underscore the need for greater clarity about what pretheoretically we want a clinical theory and test of competence to capture. It is of course reasonable to say that such a test must be consistent with major tenets of the relevant case law (Appelbaum 1998). But a legally valid concept of competence of this sort is too thin and arbitrary a foundation on which to build a clinical medical theory of competence. An empirically valid theory and test of the latter sort must incorporate the role of values if it is be truly helpful in medical practice.Value and the MacCAT-TI agree with Tan and her colleagues that some notion of "pathological value" needs to be... (shrink)

In this paper I discuss the view that the appropriate concept of competence is a decision‐relative one: that a person may be competent to make one decision but not another. The argument that I present is that neither of the two competing theories supporting the decision‐relative approach, internalism and externalism, can provide a coherent explanation of why a person’s competence should be thought to be relative to a particular decision. On the one hand, internalism, which regards competence as exhaustively a (...) matter of the person’s understanding, fails to identify the specific skills or content that would warrant linking a specific decision with competence, and thus cannot provide an account of decision‐relative that parallels task‐relative. On the other hand, externalism, which regards competence as a matter of the person’s understanding in relation to external elements such as risk, cannot adequately defend why a person’s competence to make a decision should ‘track’ the level of probable harm that results from the decision. (shrink)

Decision-making capacity (DMC) is normally taken to include (1) understanding (and appreciation); (2) the ability to deliberate or weigh up; and (3) the ability to express a choice. In an article published recently in PPP, Jacinta Tan and her colleagues (2006) suggest that DMC requires also (4) the absence of 'pathological values' (i.e., values that arise from mental disorder). In this paper, I argue that although (1)–(3) might be necessary for DMC, (4) is not necessary (barring cases where pathological values (...) interfere with (1)–(3)). My argument will simply be that (4) fails to be supported by the empirical data provided by Tan et al., which I claim supports the view that people with pathological values do often have DMC. I also consider but reject the claim that pathological values entail incapacity because they are not 'authentic' to the person. I conclude that the absence of pathological values does not constitute an additional element of DMC and that we cannot justify compulsory treatment of people who have (1)–(3), but not (4), on the grounds they lack DMC. (shrink)

Informed consent is valid only if the person giving it is competent. Although allegedly informed consents are routinely tendered, there are nonetheless serious problems with the concept of competence as it stands. First, conceptual work upon competence is incomplete: the concept is unanalyzed and no logic of competence has been identified. It is thus virtually impossible to reliably discern who is competent. ;Traditional work on competence has explicated three dichotomies from which the necessary conditions for the possibility of competence will (...) be identified, viz., that competence is either a global or a specific notion; is present in varying degrees or in virtue of a threshold; and may or not include appeals to consequences. Past efforts have failed to notice a fourth dichotomy: competence as an affective or cognitive notion. Failure to designate the appropriate arms of these dichotomies is responsible for there being, at present, no reliable test for competence. The inadequacies of a highly regarded particular test for competence, the mental status examination, are examined in light of this failure. ;Competence is located within the rule-governed practice of informed consent. That practice and hence, competence, is justified through a Kantian analysis of respect for persons. This analysis reveals that the logic of competence requires assessment in terms of specific rather than global concerns; degrees of ability rather than a threshold; both cognitive and affective abilities; and no appeal to consequences. ;Based upon the analyses of consent as an example of decision making within the practice of informed consent and of respect for persons, the capacities which jointly comprise competence are identified. These are the capacities to receive, recognize, and retrieve information; to reason about, relate to oneself, and rank options; to choose among alternatives; and, under certain circumstances, to defend one's choice. ;Identification of the logic of competence and explication of and justification for the capacities that comprise competence to consent provide a conceptual foundation for the crucial concept of competence that the informed consent process currently lacks. It should facilitate construction of a test for competence. (shrink)