Abstract
In this paper I get clearer on the considerations that ought to inform the evaluation and development of medico-legal competency criteria—where this is taken to be a question regarding the abilities that ought to be needed for a patient to be found competent in medico-legal contexts. In the “Decisional Competency in Medico-Legal Contexts” section I explore how the question regarding the abilities that ought to be needed for decisional competence is to be interpreted. I begin by considering an interpretation that takes the question to be asking about the abilities needed to satisfy an idealized view of competent decision-making, according to which decisional competency is a matter of possessing those abilities or attributes that are needed to engage in good or effective or, perhaps, substantially autonomous or rational decision-making. The view has some plausibility—it accords with the way decisional competency is understood in a number of everyday contexts—but fails as an interpretation of the question regarding the abilities that should be needed for decisional competence in medico-legal contexts. Nevertheless, consideration of why it is mistaken suggests a more accurate interpretation and points the way in which the question regarding the evaluation of medico-legal competency criteria is to be answered. Building on other scholarly work in the area, I outline in the “Primary and Secondary Requirements” section several requirements that decisional competence criteria ought to satisfy. Then, in the “Applying the Framework” section, I say something about the extent to which medico-legal competency criteria, as well as some models of decisional competency proposed in the academic literature, fulfil those requirements.
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Notes
The requirement to respect competent patients’ decision-making is not normally taken to extend to patients’ requests for treatment, however, because the degree to which requests should be respected will depend on such things as availability of resources and consideration of whether what is requested is clinically indicated (see [11], [35]).
For a helpful review of different assessment instruments, see Dunn et al. [17].
For the view that competence criteria should include ‘coherency of preferences’ as a component, so to accommodate difficulties in decision-making that people with major depression experience, see Rudnick [32].
To be clear, then, the claim is not that medico-legal decisional competency criteria fail to set standards against which decision-making can be assessed; for clearly they do. Rather the claim is that the standards that medico-legal decisional competency criteria set are those standards that a person’s decision-making would need to achieve in order for that person to be allowed to retain decisional authority, and there is no a priori reason for supposing that those standards are or should be the same standards that need to be achieved in order for someone’s decision-making to satisfy some kind or decision-making ideal.
See also Appelbaum’s rejoinder to Charland [6]: “[B]efore expanding the traditional, cognitively oriented elements of standards of competence to include a component focused on emotional capacity, one ought to require compelling evidence that the change will produce more benefit than harm” ([2], p.384).
The point applies to the evaluation of decisional competency criteria in societies that broadly share the liberal values of most North American and European states. These are the medico-legal criteria and legal contexts with which this paper is concerned. The question of how states that do not share such values are to evaluate decisional competency criteria (where these criteria exist) and weigh conflicting considerations is an extremely complex matter and a question that I am not able to answer at the present time.
Of course, it is consistent with a fixed view of competence that decisions carrying greater risk should require more rigorous evaluation of competence (see [20]; but for a sceptical note regarding the extent to which healthcare professionals do assess competence, even with regards to more serious treatment decisions, see [23], p. 109). Also, on a fixed view, risks are likely to be relevant to evaluating the best interests of a patient that is found to be incompetent. For instance, a treatment carrying a high risk of harmful side-effects is less likely to be in a patient’s best interests than an equally effective treatment carrying little or no risk of harmful side-effects, especially where there is nothing to suggest that the higher risk option is more in keeping with the patient’s beliefs or values and/or past wishes (see S.4 of the Mental Capacity Act 2005 [26]). It is an important question—but one that cannot be explored here—whether the law should adopt a risk-related or fixed view (but for relevant discussion see [39], [3], [20], [4]).
This is not to say that there might be some difficult cases such as when, for instance, a person refuses to discuss his or her reasons for consenting to or refusing treatment; thereby making it difficult to assess whether the person has weighed (or even understood) the information relevant to that decision.
That considerations of proportionality have been accorded a high degree of importance by those responsible for shaping the law on decisional competence is supported by Coggon and Miola when they observe with respect to Lord Donaldson’s judgement in the case of Re T (adult: refusal of medical treatment) [29] that it “is reasonable to suppose that Lord Donaldson MR’s celebrated statement that the law on decision-making should look to capacity rather than rationality is born of a concern to protect plural, incommensurable moral values that exist amongst the population, and to safeguard people from excessive interference in their decision-making” ([12], p. 527; italics in original). Compare also Mr Justice Bodey’s judgement in the case of A Local Authority v A [1] when considering whether the ability to understand information relevant to making a decision should include understanding the emotional and social consequences of refusing contraception—what Bodey J referred to as a ‘social-consequences test’. Bodey J writes at para [61]: “I am persuaded that this wider test would create a real risk of blurring the line between capacity and best interests. If part of the test were to involve whether the woman concerned understood enough about the practical realities of parenthood, then one would inevitably be in the realms of a degree of subjectivity, into which a paternalistic approach could easily creep.” And he goes onto say at para [63]: “To apply the wider test would be to ‘set the bar too high’ and would risk a move away from personal autonomy in the direction of social engineering”. For further discussion, see [24].
For instance, Dunn et al [18] raise concerns regarding proportionality when they state that “justifying substitute decision-making on the basis of situational vulnerability could lead to interventions that are potentially infinite in scope and application” (p. 241; see also [24]). They seem to raise also worries relating to equity when they remark that the courts’ treatment of vulnerable adults seems to assume a ‘status-approach’ to defining vulnerability according to which a person is considered vulnerable (and thereby in need of court protection) simply by virtue of being disabled or of a particular age, for instance (p. 244). And elsewhere in their commentary, Dunn et al. seem to question whether current legal provision succeeds in being minimally-infringing, when they argue that statutory legislation if introduced would need to recognize that prior to any protective intervention being initiated “every attempt should be made to support adults with autonomous risk management” (p. 253).
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Acknowledgments
My thanks to Suzanne Uniacke, Paul Gilbert and two anonymous reviewers for their very helpful comments on earlier drafts of this paper.
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Whiting, D. Evaluating Medico-Legal Decisional Competency Criteria. Health Care Anal 23, 181–196 (2015). https://doi.org/10.1007/s10728-013-0258-z
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DOI: https://doi.org/10.1007/s10728-013-0258-z