Abstract
We undertake to bring a phenomenological perspective to bear on a challenge of contemporary law and clinical practice. In a wide variety of contexts, legal and medical professionals are called upon to assess the competence or capacity of an individual to exercise her own judgement in making a decision for herself. We focus on decisions regarding consent to or refusal of medical treatment and contrast a widely recognised clinical instrument, the MacCAT-T, with a more phenomenologically informed approach. While the MacCAT-T focuses attention on individual cognitive performance criteria, an approach oriented by second-person phenomenology brings into view the complex role of time, others and identity in constituting the capacity for individual autonomous judgement. Our phenomenological analysis has consequences both for the practice of capacity assessments and for further research in this arena. Good practice in capacity assessment must attend to decision communities, distributed capacity, and temporal competence, while research on mental capacity will miss the phenomenon if it trains its focus ‘between the ears.’ We illustrate our approach by considering two recent cases of contested capacity: one involving cognitive disability in a dysfunctional decision community, the second presenting the possibility of competent decision-making under conditions of paranoid schizophrenia.
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Notes
We hope that it is clear from the foregoing that the kinds of judges we have in mind need not wear robes and sit in wood-paneled courtrooms. Judges are simply those who exercise judgement; they include managers and military commanders and will writers and citizens….
For the canonical positions in the debate over phenomenological method, see Husserl (1913/1931) and the respective Introductions to Heidegger (1927a/1962) and Merleau-Ponty (1945/1962). For recent naturalistic approaches to phenomenology, see Dennett (1991) and Petitot et al. (1999). On the contrast between ‘straight’ and ‘hetero-’phenomenology, see Cerbone (2003).
In various phases of its historical development, there have been rather intense disputes about the demarcation of phenomenology from various other sciences—notably in the contexts of the disputes over psychologism. We have written about this history elsewhere (see Martin 1999 and 2005, Hickerson 2007) but it is not our intention to be drawn into these sorts of border disputes here.
Except where otherwise indicated, we follow Appelbaum (2007) in using the terms ‘competence’ and ‘capacity’ interchangeably. (See in particular Appelbaum (2007: 1834).) The two terms have sometimes been used with different senses but more often they occupy the same semantic position in different dialects of legalese. Where US courts speak of ‘mental competence,’ UK law typically invokes ‘mental capacity.’ For one formulation of a distinction between the two terms in a US context, see Marson (2001: 268–269).
There is certainly an air of paradox in the thought that there might be conditions on a right that is itself described as absolute. Legally, the paradox is resolved by distinguishing between possessing the right and exercising it. Only a competent individual possesses the right to refuse treatment. In this sense, possession of the right is conditional on competence. However, for the competent individual, that right trumps all other considerations. It does not have to be weighed, for example, against the rights of others or the interests of the state. In this sense, the exercise of the right is absolute.
“The MacCAT-T offers physicians and other health professionals practical guidance in their assessments of patients' decision-making capacities in the context of informed consent to treatment.” Grisso and Appelbaum (1998b: 1).
Chapter 7 of Grisso and Appelbaum (1998a) proposes a procedure for using MacCAT-T results in a balancing exercise intended to yield an overall capacity judgement for particular cases.
The phenomenon of “instrument creep” itself merits scrutiny and is an area where resources from the phenomenological tradition might be usefully applied to juridico-medical practice. We reserve discussion for another occasion.
See, for example, Moye et al. (2006, 80): “To determine the percentage of participants with impaired overall capacity, participants were rated as impaired if their score for any legal standard was less than 2.5SD below the comparison group mean, as impairment on any legal standard requires a clinical finding of incapacity.”
Despite this essentially negative result, Palmer and Silva argue that there are “clear pragmatic implications” from this line of research. “Most notably,” they argue, it shows that “across neuropsychiatric and other medical populations, clinicians and researchers should be alert to the presence of cognitive deficits when providing informed consent” (Palmer and Salva 2007: 1055).
One fMRI study focusing on consent forms has established that “good understanding of a consent form relies, at least in part, on adequate engagement of brain systems known to be involved in encoding verbal information” Eyler et al. (2007: 141).
See, for instance, Heidegger (1927a/1962, §14).
A world in this sense is not simply a collection of objects nor is it some kind of flatly uniform space in which objects have locations and trajectories. It is a textured hermeneutic context in which we encounter, among other things, circumstances that call for decision.
We do not mean to suggest that such questions necessarily make use of the subjunctive grammatical mood. Under the MacCAT-T protocol, a characteristic question in such an exchange might be framed as follows: “What do you believe will happen if you are not treated?” See Grisso and Appelbaum (1998a: 88).
Cf. Putnam (1975: 144).
In some interesting cases of first person-plural judgement it is not even the case that any one member of the decision community favoured the decision that was taken. The electorate as a corporate entity elected the current Parliament but perhaps no one voter actually wanted it.
For a recent discussion, see Westlund (2009).
The notion of identity with which we are concerned is not to be confused with the notion of numerical sameness that has played a role in the long-standing metaphysical debates about personal identity over time.
A local authority v Mrs. A and Mr. A (2010); High Court of Justice, Family Division (Mr. Justice D. Bodey); Case Number 11753201.
The local authority also sought a ruling that Mrs. A lacked sufficient mental capacity to decide where to live, and what contact to have with Mr. A. For present purposes, we confine our attention to the issue pertaining to the treatment decision.
One of the subsidiary issues in Mrs. A's case concerns the proper standard of reasoning in treatment decisions involving contraception. The relevant statute supports a finding of incapacity for an individual who is unable to understand the foreseeable consequences of a refusal of treatment. However, just what does this require when a sexually active woman refuses contraceptive treatment? The local authority held that “understanding the foreseeable consequences” in this case required that Mrs. A be able to “understand and envisage … what would actually be involved in caring for and committing to a child” (para. 56). However, the judge sided with the Official Solicitor, who argued that such a standard would “deny capacity to large numbers of women, including many first-time mothers, who would presently be viewed as having capacity regarding contraception” (para. 57).
It is important to note that while the judge found Mrs. A to be lacking in mental capacity to make the decision about contraception, he nonetheless did not support the local authority in their petition to administer contraception against her will, arguing that, on balance, this would not be a course of action in Mrs. A's best interests.
According to Grisso and Appelbaum, the stated aim of a competence assessment must ultimately be “to reach the same judgement as would result from judicial proceedings[,] … to mimic the judgement that would be reached by a court in that case” (Grisso and Appelbaum 1998a, 129). The Court of Protection ruling in the case of Mrs. A makes it clear that success by this measure must, as we have argued, go beyond the measurement of individual cognitive performance.
Our description of John's case is drawn from a radio documentary (BBC Radio 2010); all quotes pertaining to John are taken from the published transcript. We are grateful to Beth Eastwood of the BBC for sharing materials used in the preparation of this broadcast.
An MHA section provides for involuntary treatment of John's mental disorder, but it does not provide the basis for involuntary treatment of an unrelated physical disorder.
“I see a thing, e.g., this box, but I do not see my sensations. I always see one and the same box, however it may be turned and tilted. I have always the same ‘content of consciousness’—if I care to call the perceived object a content of consciousness. But each turn yields a new ‘content of consciousness’, in a much more appropriate use of words. Very different contents are therefore experienced, though the same object is perceived” Husserl (1900/1970, 565).
It may of course be the case that the anxiety expressed by John's psychiatrist was in part (perhaps in large part) a matter of self-interested concern. If John had emerged from surgery denying that he had given his consent, this would certainly not have been seen as an optimal clinical outcome and could well have led to a range of administrative investigations or legal challenges regarding the taking of John's consent. However, this dimension of the psychiatrist's motives does not change the crucial fact. For whatever reason—altruistic or self-interested or some combination of the two—members of John's team were determined to navigate the dilemma in such a way as to foster John's ‘ownership’ of the outcome.
Support for the research presented here was provided by the UK Arts and Humanities Researc Council. For invaluable feedback and research assistance, we wish to thank members of the research team of the Essex Autonomy Project (particularly Viv Ashley, Fabian Freyenhagen and Tom O’Shea), as well as Gareth Owen, Beatrice Han-Pile, Debra Harris, Dan Zahavi and Allison Glasscock.
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Martin, W., Hickerson, R. Mental capacity and the applied phenomenology of judgement. Phenom Cogn Sci 12, 195–214 (2013). https://doi.org/10.1007/s11097-011-9242-y
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DOI: https://doi.org/10.1007/s11097-011-9242-y