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)

Most contemporary models and tests for mental competence do not make adequate provision for the positive influence of emotion in the determination of competence. This most likely is due to a reliance on an outdated view of emotion according to which these models are essentially noncognitive. Leading developments in modern emotion theory indicate that this noncognitive theory of emotion is no longer tenable. Emotions, in fact, are essentially representational in a manner that makes them “cognitive” in an important sense. This (...) requires a reassessment of the place of emotion in the theory of mental competence. Building on Benjamin Freedman’s “recognizable reasons” account of competence, it will be argued that (1) emotions form a class of recognizable reasons of their own, and (2) that competence to consent is a matter of practical, rather than theoretical, reasoning. Emotions, then, are an essential ingredient in mental competence, and the cognitive bias that permeates the theory of mental competence today must be rejected. (shrink)

Autonomy is a concept that holds much appeal to social and legal philosophers. Within a medical context, it is often argued that it should be afforded supremacy over other concepts and interests. When respect for autonomy merely requires non-intervention, an adult’s right to refuse treatment is held at law to be absolute. This apparently simple statement of principle does not hold true in practice. This is in part because an individual must be found to be competent to make a valid (...) refusal of consent to medical treatment, and capacity to decide is not an absolute concept. But further to this, I argue that there are three relevant understandings of autonomy within our society, and each can demand in differing cases that different courses of action be followed. Judges, perhaps inadvertently, have been able to take advantage of the equivocal nature of the concept to come tacitly to decisions that reflect their own moral judgments of patients or decisions made in particular cases. The result is the inconsistent application of principle. I ask whether this is an unforeseen outcome or if it reflects a wilful disregard for equal treatment in favour of silent moral judgments in legal cases. Whatever the cause, I suggest that once this practice is seen to occur, acceptable justification of it in some cases is difficult to find. (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)

According to the principle of patient autonomy, patients have the right to be self-determining in decisions about their own medical care, which includes the right to refuse treatment. However, a treatment refusal may legitimately be overridden in cases where the decision is judged to be incompetent. It has recently been proposed that in assessments of competence, attention should be paid to the evaluative judgments that guide patients' treatment decisions.In this paper I examine this claim in light of theories of practical (...) rationality, focusing on the difficult case of an anorexic person who is judged to be competent and refuses treatment, thereby putting themselves at risk of serious harm. I argue that the standard criteria for competence assess whether a treatment decision satisfies the goals of practical decision-making, and that this same criterion can be applied to a patient's decision-guiding commitments. As a consequence I propose that a particular understanding of practical rationality offers a theoretical framework for justifying involuntary treatment in the anorexia case. (shrink)

From Hippocrates to paternalism to autonomy : the new hegemony -- From autonomy to consent -- Consent, autonomy, and the law -- Autonomy at the end of life -- Autonomy and pregnancy -- Autonomy and genetic information -- Autonomy and organ transplantation -- Autonomy, consent, and the law.

In many Western jurisdictions, the law presumes that adult persons, and sometimes children that meet certain criteria, are capable of making their own health care 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 last 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. (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:Ought We to Require Emotional Capacity as Part of Decisional Competence?Paul S. Appelbaum* (bio)AbstractThe preceding commentary by Louis Charland suggests that traditional cognitive views of decision-making competence err in not taking into account patients’ emotional capacities. Examined closely, however, Charland’s argument fails to escape the cognitive bias that he condemns. However, there may be stronger arguments for broadening the focus of competence assessment to include emotional capacities, centering on (...) the ways in which emotions aid humans in processing information. Before emotional capacities are added to the list of functions essential for decisional competence, though, the feasibility and utility of such a reorientation must be demonstrated.To what extent ought persons’ capacities to experience emotion be taken into account when determining whether they should be deemed competent to make their own decisions? In the previous article, Louis Charland (1998) argues that traditional models of decision-making competence—of which the MacArthur Competence Treatment Study is a typical example—are mistaken in focusing narrowly on persons’ cognitive abilities to the neglect of emotional factors. In contrast, he suggests, constructs of competence ought explicitly to require a capacity to experience emotions, which he believes is central to meaningful decision making, before deeming persons competent.Charland, as he acknowledges, is not the first to suggest that the presence of some degree of emotional capacity is a necessary element of competence, but his argument is among the most elaborate to date and is certainly worth closer examination. Looked at carefully, however, Charland’s argument does not make quite the case for the determination of emotional capacity in competence assessment that he claims for it. Indeed, as I demonstrate below, Charland may share the same “pernicious [End Page 377] cognitive bias” that he ascribes to more traditional approaches. However, despite what I identify as the problems in Charland’s argument, others have raised more disturbing questions about the lack of attention to emotional issues in competence assessment. Thus, I am not ready to reject entirely the possibility that determinations of decisional competence ought to consider emotional factors. I conclude by outlining the questions that remain to be answered to identify more clearly the potential benefits of such an approach.The Construct of Decision-Making CompetenceSome preliminary comments about the nature of the dominant construct of decision-making competence may provide a useful frame for my response to Charland’s paper. Contemporary ideas of competence are tied inextricably to the ideal of self-determination in modern Western societies. Such societies are committed to respect for individual choice, both as a good in its own right and on the grounds that each person knows best what choices will maximize his or her own welfare. In general, therefore, states will not intervene to prevent persons from acting on their decisions, even when the choices they make—like the decision to smoke or to refuse potentially life-saving medical care—may objectively be thought to be detrimental to them.In some cases, however, the presumption that people will act in their own interests, as well as the notion that there is something intrinsically valuable in respecting their choices, fails (Buchanan and Brock 1989). When people’s minds are so disordered that they cannot be said to be making meaningful choices, other values come into play. Such people are called “incompetent.” When persons reach that point, the state’s interest in protecting its citizens becomes primary and someone else must make decisions on their behalf. Note that the size of this group must be sharply limited, lest a liberal society’s commitment to self-determination be undermined: There is no more profound infringement of the rights of citizens than the determination that they are incompetent. Thus, the criteria for incompetence must be selected in a deliberately narrow fashion—alternately, one might say that the standards for competence are made intentionally broad—so that all but a tiny percentage of citizens will be permitted to make decisions on their own.In the Anglo-American world, the process of formulating criteria of competence by and large has been left to the common law courts. Over the course of centuries they have identified the capacities that are, in... (shrink)

Linking the process of rational decision making to emotions, an award-winning scientist who has done extensive research with brain-damaged patients notes the dependence of thought processes on feelings and the body's survival-oriented regulators. 50,000 first printing.

Public health ethics, like the field of public health it addresses, traditionally has focused more on practice and particular cases than on theory, with the result that some concepts, methods, and boundaries remain largely undefined. This paper attempts to provide a rough conceptual map of the terrain of public health ethics. We begin by briefly defining public health and identifying general features of the field that are particularly relevant for a discussion of public health ethics.Public health is primarily concerned with (...) the health of the entire population, rather than the health of individuals. Its features include an emphasis on the promotion of health and the prevention of disease and disability; the collection and use of epidemiological data, population surveillance, and other forms of empirical quantitative assessment; a recognition of the multidimensional nature of the determinants of health; and a focus on the complex interactions of many factors—biological, behavioral, social, and environmental—in developing effective interventions. (shrink)

It is nearly universally thought that the kind of decision-making competence that gives one a strong prima facie right to make one's own medical decisions essentially involves having an ability (or abilities) of some sort, or having a certain level or degree of ability (or abilities). When put under philosophical scrutiny, however, this kind of theory does not hold up. I will argue that being competent does not essentially involve abilities, and I will propose and defend a theory of decision-making (...) competence according to which one is competent only if one possesses a certain kind of rationality in making treatment decisions. (shrink)

The principle of autonomy presupposes Patient Decision Making Competence (PDMC). For a few decades a considerable amount of empirical research has been done into PDMC. In this contribution that research is explored. After a short exposition on four qualities involved in PDMC, different approaches to assess PDMC are distinguished, namely a negative and a positive one. In the negative approach the focus is on identifying psychopathologic conditions that impair sound decision making; the positive one attempts to assess whether a patient (...) actually has the required abilities and qualities. Characteristic of the latter approach is the use of (or development of) test-like instruments for PDMC assessment. Some of these tests are discussed and commented on. Although they may be useful in investigating aspects of PDMC, none of the described approaches and tests offers a reliable and valid method for PDMC assessment. In response to a potential misuse of tests, the concept of a supportive situation is briefly introduced in order to draw attention to the risk of prematurely deeming patients incompetent on the basis of low test scores, whereas their insufficient performance may be (partly) attributable to alack of situational support. Also, the need for and possibility of an emotionalist concept of PDMC are suggested, as an alternative to the more common rationalist one. In this regard,the legitimacy of competence being conceived as a presumption or fiction of law, deserves further investigation. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:"But I Don’t Feel It":Values and Emotions in the Assessment of Competence in Patients With Anorexia NervosaJochen Vollmann (bio)Keywordscompetence assessment, mental capacity, informed consent, psychiatry, anorexia nervosaThe respect of the self-determination of patients obliges physicians to obtain the patient's consent before providing medical treatment. One important condition for a valid informed consent is the patient's competence to make autonomous health care decisions. Therefore, a proper assessment of competence to (...) make health care decisions is crucial particularly in patients with mental disorders (Vollmann 2000; Helmchen and Vollmann 2001). In recent years, several empirical studies on the assessment of competence in patients suffering from different mental disorders have been performed using the MacArthur Competence Assessment Tool-Treatment (MacCAT-T; Grisso and Appelbaum1998). This assessment tool is based on legal standards of competence such as understanding, reasoning, appreciation, and expressing a choice. Since its first publication, the MacCAT-T has been widely accepted as a "gold standard" of competence assessment in the psychiatric literature. In recent years the MacCAT-T has been applied to patients suffering from depression, schizophrenia, dementia, angina pectoris, and normal controls (for overview, see Welie [2001] and Bauer and Vollmann [2002]).Tan and her colleagues (2006) use the MacCAT-T the first time to assess competence to make treatment decisions in patients with anorexia nervosa. Coming from clinical practice, the authors have noticed that the MacCAT-T might not work in this group of patients. Therefore, they use semi-structured interviews in addition to the MacCAT-T to identify aspects of thinking that might be relevant to the issue of competence to refuse treatment. They use grounded theory techniques for a qualitative analysis of the data as well as five brief, self-administered questionnaires to ascertain levels of psychopathology.The results of the study show that anorexia nervosa can have complex and variable effects on concentration, beliefs, and thought processing without affecting the ability to perform well on the MacCAT-T. At the same time, participants also report a change in their value system as well as in their personal identity. The authors argue that the results of their studies suggest that the competence to refuse treatment might be compromised in [End Page 289] people with anorexia nervosa in ways that are not captured by the MacCAT-T. This is an interesting finding in patients with anorexia nervosa, because in all other studies with patients suffering from mental disorders such as dementia, depression, and schizophrenia, the MacCAT-T identified more patients as limited in their competence to make health care decisions in comparison with other methods of competence assessment such as clinical judgment (Vollmann et al. 2003). The authors argue on the basis on their qualitative, semistructured interviews that anorexia nervosa–specific difficulties with a thought process and the change of values are missed by the MacCAT-T.Furthermore, Tan and her associated could not find a relationship between the participants' scores on the psychopathological scales, the MacCAT-T scores, and their difficulties expressed during the qualitative interviews, although the small size of the study precludes statistical analysis. In an earlier study, clinical dementia scales but not neuropsychological testing correlated with formal (MacCAT-T) and clinical assessment of competence. Therefore, psychopathological factors might play a different role in different subgroups of patients suffering from different mental problems. However, the idea of an objective neuropsychological model of competence assessment, again, finds no support in the presented empirical data.The qualitative data from patients with anorexia nervosa underline the problem of the cognitive bias of the MacCAT-T assessment and the illusion of value-free categories. It has been argued that the cognitive focus for the MacCAT-T is in itself a normative convention and that the MacCAT-T is missing the complexity of the process to make health care decisions in real life. Therefore, values and emotions should be considered in addition to cognitive functions in assessing competence to make health care decisions (Breden and Vollmann 2004; see also "Mental capacity" 2004). Although many authors agree that the cognitive approach of capacity assessment is important but not sufficient for the assessment of competence to make health care decisions, it remains an... (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)