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)

Moral and legal notions engaged in clinical ethics should not only possess analytic clarity but a sound basis in empirical findings. The latter condition brings into question the expansion of the mature minor exception. The mature minor exception in the healthcare law of the United States has served to enable those under the legal age to consent to medical treatment. Although originally developed primarily for minors in emergency or quasi-emergency need for health care, it was expanded especially from the 1970s (...) in order to cover unemancipated minors older than 14 years. This expansion initially appeared plausible, given psychological data that showed the intellectual capacity of minors over 14 to recognize the causal connection between their choices and the consequences of their choices. However, subsequent psychological studies have shown that minors generally fail to have realistic affective and evaluative appreciations of the consequences of their decisions, because they tend to over-emphasize short-term benefits and underestimate long-term risks. Also, unlike most decisionmakers over 21, the decisions of minors are more often marked by the lack of adequate impulse control, all of which is reflected in the far higher involvement of adolescents in acts of violence, intentional injury, and serious automobile accidents. These effects are more evident in circumstances that elicit elevated affective responses. The advent of brain imaging has allowed the actual visualization of qualitative differences between how minors versus persons over the age of 21 generally assess risks and benefits and make decisions. In the case of most under the age of 21, subcortical systems fail adequately to be checked by the prefrontal systems that are involved in adult executive decisions. The neuroanatomical and psychological model developed by Casey, Jones, and Summerville offers an empirical insight into the qualitative differences in the neuroanatomical and neuropsychological bases of adolescent versus adult decision making. These and other data, as well as developing law bearing on the culpability of juvenile criminal offenders, argue for critically re-evaluating the expansion of the mature minor exception with regard to medical decision making, as well as in support of a rebuttable presumption in favor of treating minors as immature decisionmakers. The clinical ethics of adolescent medical decision making will need foundationally to be reconsidered. (shrink)

Standard models of adolescent risk taking posit that the cognitive abilities of adolescents and adults are equivalent, and that increases in risk taking that occur during adolescence are the result of socio emotional differences in impulsivity, sensation seeking, and lack of self-control. Fuzzy-trace theory incorporates these socio emotional differences. However, it predicts that there are also cognitive differences between adolescents and adults, specifically that there are developmental increases in gist-based intuition that reflects understanding. Gist understanding, as opposed to verbatim-based analysis, (...) generally has been hypothesized to have a protective effect on risk taking in adolescence. Gist understanding is also an essential element of informed consent regarding risks in medical decision- making. Evidence thus supports the argument that adolescents’ status as mature minors should be treated as an exception rather than a presumption, because accuracy in verbatim analysis is not mature gist understanding. Use of the exception should be accompanied by medical experts’ input on the bottom-line gist of risks involved in treatment. (shrink)

US Supreme Court rulings concerning sanctions for juvenile offenders have drawn on the science of brain development and concluded that adolescents are inherently less mature than adults in ways that render them less culpable. This conclusion departs from arguments made in cases involving the mature minor doctrine, in which teenagers have been portrayed as comparable to adults in their capacity to make medical decisions. I attempt to reconcile these apparently incompatible views of adolescents’ decision-making competence. Adolescents are indeed less mature (...) than adults when making decisions under conditions that are characterized by emotional arousal and peer pressure, but adolescents aged 15 and older are just as mature as adults when emotional arousal is minimized and when they are not under the influence of peers, conditions that typically characterize medical decision-making. The mature minor doctrine, as applied to individuals 15 and older, is thus consistent with recent research on adolescent development. (shrink)

In this paper I examine the debate between ‘protectionists’ and ‘liberationists’ concerning the appropriate role of minors in decision-making about their health care, focusing particularly on disagreements between the two sides regarding adolescents. Protectionists advocate a more traditional, paternalistic approach in which minors have relatively little input into the healthcare decision-making process, and decisions are made for them by parents or other adults, guided by a commitment to the patient's best interests. Liberationists, on the other hand, argue in favour of (...) expanded participation by minors in treatment decisions, and decision-making authority for at least some adolescents. My examination of the debate includes discussion of liberationist shifts that have taken place in the medical community as well as in legal policy and practice, and consideration of recent research on adolescent development. In the final section of the paper, I propose a moderate position that addresses both liberationist and protectionist concerns. (shrink)

The concept of an ability to make choices and to determine one’s own outcomes fits well with experiences that most people have, and these experiences form the basis for beliefs in free will. However, the existence of conscious free will is challenged by modern research findings highlighting the unconscious origins of goal-directed behavior that gives rise to free-will beliefs. This report expands on these insights by revealing that both conscious and unconscious processes play an important role in free-will beliefs. Specifically, (...) Experiment 1 demonstrates that free-will beliefs are strengthened when conscious intentions to produce action outcomes bind the perception of action and outcome together in time. Experiment 2 shows that these beliefs are strengthened when unconscious priming of action outcomes creates illusory experiences of self-agency when the primed outcomes occur. Together, these findings suggest that beliefs in free will are associated with self-agency and are enhanced by both conscious and unconscious information processing of goal-directed behavior. -/- . (shrink)