Decision-Making Capacity Incapacitated

This post is by André Martens, pictured above. Here André summarises his recent paper ‘Paternalism in Psychiatry: Anorexia Nervosa, Decision-Making Capacity, and Compulsory Treatment’, appearing in New Perspectives on Paternalism and Health Care edited by Thomas Schramme.

Currently, decision-making capacity (DMC) is intensively discussed in disciplines such as bioethics, philosophy of psychiatry, and psychology. Some authors regard it as (mental) competence. But what exactly is DMC? What are the mental preconditions of making genuine decisions? And what role does DMC play in ethics, especially regarding the normative status of treatment decisions of psychiatric patients with reduced, or even completely lacking DMC? In my paper I try to answer these questions.

Initially, I looked at the so-called traditional account of DMC, which is associated with the work of Paul S. Appelbaum and Thomas Grisso, among others. Here, DMC is formulated in terms of certain abilities, each being a necessary condition for the ascription of DMC. These abilities are:

1. Understanding (of the factual information relevant for the focal decision),
2. Appreciation (of the consequences and significance of the focal decision for one’s own life),
3. Reasoning (being able to engage in reasoning processes such as weighing and comparing alternatives),
4. Communication of Choice (DMC requires the ability to communicate one’s own choice).

This account focuses basically on cognitive abilities. And this is exactly the reason why it cannot account for a lack of DMC in some psychiatric disorders such as anorexia nervosa. Patients afflicted by severe forms of this potentially life-threatening eating disorder regularly achieve average or even above-average results in tests that operationalize the traditional account of DMC (e.g. the MacCAT-T). Nevertheless, and this is admittedly an intuitionist thesis, at least some instances of anorexic decision making appear to be ‘flawed’, for example, the refusal of life-saving treatments in terminal anorexia nervosa. Therefore, abilities not captured by the traditional account of DMC seem to be relevant as well. But which ones?

Inspired by the work of Jacinta Tan and Louis Charland, I defend the following thesis:

Inclusion thesis: Any full account of DMC must include at least one (explicit) evaluative or emotional element.

In other words, values—broadly construed—and related emotions are highly relevant to conceptions of DMC. There are several arguments in support of this general thesis which I flesh out in my paper. Now, there are two ways of incorporating values in DMC conceptions: First, substantivism focuses on value content; for example, giving paramount importance to thinness even though being severely underweight would undermine DMC due to the content of this value. Second, proceduralism focuses on the origin and generation process of (‘pathological’) values while remaining normatively neutral in terms of value content. The latter theory fits better with contemporary liberal bioethics (although this is no argument, of course), since it does not prescribe certain values as preconditions for DMC while excluding others.

In my paper, I discuss origin/process approaches and argue that these are less plausible than they appear at first glance. Instead I propose to focus on the form (or nature) of values, in other words, on certain features that determine their function and role in a person’s mental household and, more narrowly, regarding a person’s cognitive functions related to decision-making processes. My suggestion is to supplement the traditional account of DMC with a fifth condition that requires the absence of decision-affecting compulsory values as well as related emotions. This might not be the only necessary supplement to the traditional account, but at least it accounts for a lack of DMC in anorexia nervosa in a wide range of cases and meets the inclusion thesis without relying on substantivism.

The final part of my paper is concerned with the application of this revised account to the issue of justifying soft paternalism. Soft paternalism refers to any interference with the non-autonomous will expressions of a person P, but for the good (benefit, welfare) of person P. Frequently, soft paternalism is getting justified by reference to a lack of DMC (i.e., impaired autonomy). I try to show that assessing a lack of DMC (an empirical task) does not already justify soft paternalism. DMC is a value-laden though normatively impotent concept.