American adults currently enjoy a widely accepted and legally well-settled right to refuse health care, including life sustaining treatment. Joel Feinberg provides a moral foundation for this right in liberal political theory. Feinberg's theory grounds the right to refuse in a broad right to self-determination, and it implements the right through a variable conception of voluntariness. This theory provides a plausible account that comports with the widely accepted right to refuse, commonsense, and ordinary practice. -/- Allen Buchanan and Dan Brock (...) contend, however, that Feinberg's priority for the right to self-determination is inconsistent with his variable scale of voluntariness. Although Feinberg presents his theory as one that grants categorical priority to self-determination over individual well-being, Buchanan and Brock argue that Feinberg's variable scale of voluntariness involves a balancing of self-determination and well-being. This balancing approach, which Buchanan and Brock endorse, seems to undermine the competent patient's right to refuse care because it allows concern for the patient's well-being to override that person's right to self-determination in some circumstances. Taken together, these arguments seem to suggest that we must give up either the competent patient's right to refuse treatment or the intuitively sensible variable scale. -/- In this paper, I argue that one can reconcile a categorical priority for self-determination with legal rules that incorporate a variable scale of competence. This integration requires careful examination of the practical and expressive functions of legal rules as well as of the manner in which these rules embody moral priorities. This analysis pursues specific and general projects. Specifically, it addresses the moral foundations of the legal right to refuse treatment, identifying a substantive difference between the balancing approach and the priority for self-determination that characterizes Feinberg's liberalism. Generally, it examines the types of priorities embodied by legal rules as practical decision guides and as expressions of the conventional morality represented by the law. This general project extends beyond the right to refuse treatment to the analysis of the manner in which legal rules express and apply moral priorities. (shrink)

ver since the traditional criteria for medical decision-making capacity (understanding, appreciation, reasoning, evidencing a choice) were formulated, they have been criticized for not taking sufficient account of emotions or values that seem, according to the critics and in line with clinical experiences, essential to decision-making capacity. The aim of this paper is to provide a nuanced and structured overview of the arguments provided in the literature emphasizing the importance of these factors and arguing for their inclusion in competence evaluations. Moreover, (...) a broader reflection on the findings of the literature is provided. Specific difficulties of formulating and measuring emotional and valuational factors are discussed inviting reflection on the possibility of handling relevant factors in a more flexible, case-specific, and context-specific way rather than adhering to a rigid set of operationalized criteria. (shrink)

This discussion paper continues the debate over risk‐related standards of mental competence which appears in Bioethics 5. Dan Brock there defends an approach to mental competence in patients which defines it as being relative to differing standards, more or less rigorous depending on the degree of risk involved in proposed treatments. But Mark Wicclair raises a problem for this approach: if significantly different levels of risk attach, respectively, to accepting and refusing the same treatment, then it is possible, on this (...) account, for a patient to be considered competent to accept, but not refuse, the treatment, or vice versa. I argue that this puzzle does not constitute a genuine problem for a risk‐related standard. To this end I focus on the situation where, of two mutually exclusive options, one is riskier, but offering more pronounced benefit, while the other is safer, but offering less benefit. I argue for this proposition: it can take far less insight to know that the safe option is good than to know that the risky option is better. Now say one is actually informed enough to know that the safe option is good, but not enough to know whether the risky option is better; in such a case one is competent to say yes to that first option (the safe one), but not to say yes to the other. (I argue in passing that Pascal's Wager can be interpreted as having precisely this deliberative structure.) I thus conclude that cases do indeed exist where one can be competent to say yes but not no, or vice versa; and that it is thus not an anomaly in the risk‐related standard that it entails the existence of such cases. (shrink)

Some bioethicists have argued in favor of a sliding scale notion of competence, paternalistically requiring greater competence in relation to more significant risk. I argue against a sliding scale notion, taking issue with the positions of Allen E. Buchanan and Dan W. Brock, Ian Wilkes, and Joel Feinberg. Rejecting arguments that a sliding scale is supported by legal cases, by ordinary usage, and by fallible judgments about competence, I argue in favor of greater evidence of competence when risk is greater. (...) Two clinical cases are examined, both involving amputation, to show that my fixed concept of competence, with a requirement of clearer evidence of competence when risk is high, better accounts for good moral decisions in bioethics. (shrink)

It is a clinician’s cliché that a physician only challenges a patient’s capacity to make a treatment decision if that decision is not what the physician wants. Agreement is proof of decisional capacity; disagreement is proof or at least evidence of capacity’s absence. It is assumed that this asymmetry cannot be justified, that the asymmetry must be a form of physicians’ paternalism. Instead what is at issue when patient and physician disagree are usually two laudable impulses. The first is physicians’ (...) commitment to patients’ well-being: physicians have a professional obligation as well as, ideally, a personal commitment to take care of patients—to do their best to bring about a positive medical outcome. The second impulse is common to much of human life, namely, the urge to find and to understand the source of our disagreements with one another. In this article we argue that, jointly, these impulses justify the asymmetry with regard to examining patients’ capacity. (shrink)

If a person is competent to consent to a treatment, is that person necessarily competent to refuse the very same treatment? Risk relativists answer no to this question. If the refusal of a treatment is risky, we may demand a higher level of decision-making capacity to choose this option. The position is known as asymmetry. Risk relativity rests on the possibility of setting variable levels of competence by reference to variable levels of risk. In an excellent 2016 article inJournal of (...) Medical Ethics(JME), Rob Lawlor defends asymmetry of this kind by defending risk relativity, using and developing arguments and approaches found in earlier work such as that of Wilks. He offers what we call the two-scale approach: a scale of risk is to be used to set a standard of competence on a scale of decision-making difficulty. However, can this be done in any rational way? We argue it cannot, and in this sense, and to this extent, risk relativity is a nonsense. (shrink)

Limits to paternalism are, in the liberal democracies, partially defined by the concepts of decision-making capacity/incapacity (mental competence/incompetence). The paper is a response to Ian Wilkss (1997) recent attempt to defend the idea that the standards for decisional capacity ought to vary with the degree of risk incurred by certain choices. Wilkss defense is based on a direct appeal to the logical features of examples and analogies, thus attempting to by-pass earlier criticisms (e.g., Culver Gert, 1990) of risk-based standards. Wilkss (...) argument is found wanting on the grounds that he misconstrues the logic of such capacity, especially in accounting for conceptual and pragmatic ties with issues of decisional authority. A diagnosis is offered as to the source of Wilkss error (the assumption that mental competence is a species of wider genus of competence), and an alternative way of accounting for risk within the predominant contemporary legal framework is sketched. (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)

The debate over risk-related standards of decisional capacity remains one of the most important and unresolved challenges to our understanding of the demands of informed consent. On one hand, risk-related standards benefit from significant intuitive support. On the other hand, risk-related standards appear to be committed to asymmetrical capacity—a conceptual incoherence. This latter objection can be avoided by holding that risk-related standards are the result of evidential considerations introduced by (i) the reasonable person standard and (ii) the standing assumption that (...) patients have capacity. This evidential approach to justifying risk-related standards of capacity avoids the most significant challenges faced by extant views while grounding risk-related standards in two fairly uncontroversial views in biomedical ethics. (shrink)