The relationship between dementia and criminal behavior perplexes legal and health care systems. Dementia is a progressive clinical syndrome defined by impairment in at least two cognitive domains that interferes with one's activities of daily. Dementia symptoms have been associated with behaviors that violate social norms and constitute criminal actions. A failure to address a gap in policies that support appropriate management of individuals with dementia reflects a failure in our social obligation to care for those who are most vulnerable (...) amongst us. Categorical protections, informed by precedent models applied to juveniles and individuals with psychiatric illness, could help meet a social obligation to provide protections to individuals with dementia. We propose an approach that integrates affirmative defenses to mitigate criminal liability and sentencing restrictions to prevent cruel and unusual punishment. (shrink)

In this issue of the Hastings Center Report, Daniel Brudney suggests that clinicians have an overly deferential attitude toward their patients’ surrogate decision-makers that is rooted in a wrongful investment of moral authority. He maintains that surrogate decision-makers have no moral right to decide for their loved ones and that their value in the decision-making process is limited to their knowledge of their loved one's preferences. If operationalized, Brudney's framework would ease the way for clinicians to remove a surrogate who (...) cannot provide information relevant to the patient's preferences and to resort to a paternalistic model of decision-making. Brudney fails to consider that the value of the surrogate does not flow from the surrogate, but rather from the patient's moral claim to have decisions made for him or her by a loved one. This claim recognizes that surrogates have intrinsic value through their relationship to and knowledge of the patient. Bioethics consultation services can assist clinical teams in engaging with the human crowd that surrounds each patient and navigating conflicting values and goals. This relational approach embraces the “mire and blood” that is endemic to relationships and clinical encounters. (shrink)