The specific problems of consent for the mentally incompetent are reviewed. Scientific research is essential to test the validity of present treatments and to develop new ones. The respective roles of the physician and the researcher have to be clearly defined. The vulnerability of psychiatric patients has to be taken into consideration in such a way that some research can be conducted. It is emphasised that the ethical restrictions for research, although highly justified and necessary, are in part responsible (...) for the relatively slow progress in the application of modern neurosciences to psychiatric diseases. (shrink)

With the case of Belgium as a negative example, this paper will evaluate the legitimacy of using mentally incompetents as organ sources. The first section examines the underlying moral dilemma that results from the necessity of balancing the principle of respect for persons with the obligation to help people in desperate need. We argue for the rejection of a radical utilitarian approach but also question the appropriateness of a categorical prohibition. Section two aims to strike a fair balance (...) between the competing interests at stake and to define the conditions under which organ harvest from mentally incompetents might be morally acceptable. To this end, we morally assess the main requirements that have been put forward to allow organ removal from incompetent donors. We conclude that the current Belgian legislation is far too permissive and that national regulations that do not permit the harvest of non-regenerable organs from mentally incompetents in exceptional circumstances are too restrictive. On the basis of this discussion, we propose a number of guiding principles for decision-making in this area. (shrink)

Doctors are regularly confronted with requests for sterilisation of mentally handicapped people who cannot give consent for themselves. They ought to act in a medical vacuum because there doesn't exist a consensus about a model for decision making on this matter. In this article a model for decision making is proposed, based on a review of the literature and our own research data. We have attempted to select and classify certain factors which could enable us to arrive at an (...) ethically justifiable method of making a medical decision. In doing so we distinguish two major criteria: heredity and parenting competence, and six minor criteria: conception risk, IQ, age, personality, medical aspects and prognosis and finally support and guidance for the mentally handicapped person. The major criteria give rise to a "situation of necessity". In this situation the physician is confronted with a conflict of values and interests. The minor criteria are of an entirely different ethical order. They can only be considered once the major criteria have created a "situation of necessity". Ultimately it comes down to deciding whether the benefits of sterilisation outweigh the drawbacks and whether the means are appropriate to the end, where efficient contraception is the end and irreversible sterilisation is the means. (shrink)

Prior to the second world war, most persons confined in insane asylums were regarded as legally incompetent and had guardians appointed for them. Today, most persons confined in mental hospitals are, in law, competent; nevertheless, in fact, they are treated as if they were incompetent. Should the goal of mental health policy be providing better psychiatric services to more and more people, or the reduction and ultimate elimination of the number of persons in the population treated as mentally ill?

Justification for psychiatric paternalism is most easily established where mental illness renders the person mentally incompetent, depriving him of the capacity for rational agency and for autonomy, hence undermining the basis for liberal rights against paternalism. But some philosophers, and no doubt some doctors, have been deeply concerned by the inadequacy of the concept of mental incompetence to encapsulate some apparently appealing cases for psychiatric paternalism. We ought to view mental incompetence as just one subset of a broader justification (...) for psychiatric paternalism. The very basis of liberal limitations on psychiatric paternalism, whether described in terms of rights to autonomy or as respect for differences in values and lifestyles, presupposes a sense of moral persistence, and hence some sufficiently persistent self. Paternalistic intervention is warranted when we are unable to govern our lives in a manner consistent with the goals and values that comprise that ‘self’. One way that can occur is when we lack the mental capacities required for autonomy, such that we are unable to interpret and interact with our environment in order to meaningfully pursue our goals, i.e. mental incompetence. But it can also occur when we are subject to impositions that alter our goals without altering our capacity to pursue them — i.e. when it is our ‘self’ that is impaired rather than our competence. (shrink)

German legislation demands that decisions about the treatment of mentally incompetent patients require an ‘informed consent’. If this was not given by the patient him-/herself before he/she became incompetent, it has to be sought by the physician from a guardian, who has to be formally legitimized before. Additionally this surrogate has to seek the permission of a Court of Guardianship (Vormundschaftsgericht), if he/she intends to consent to interventions, which pose significant risks to the health or the life of the (...) person under his/her care. This includes ‘end-of-life decisions’. Deviations from this procedure are only allowed in acute emergencies or cases of ‘medical futility’. On the basis of epidemiological and demographical data it can be shown that the vast majority of surrogate decisions on incompetent patients in Germany is not covered by legally valid consent. Moreover, the data suggests that if consent were to be requested according to the legal regulations, both the legal and medical system could realistically never cope with the practical consequences of this. Additionally, empiric research has revealed serious deficits concerning medical ‘end of life-decisions’ and practical performance in palliative care. As a consequence a multidisciplinary discussion has developed in Germany about the reform of present legislation with respect to key-issues like• the assessment of mental competence• the options for exercising patient self-determination via advance directives and durable powers of attorney• the improvement of palliative care facilities,• the clarification of formal procedures for surrogate decision-making in health care and towards the end of life• and the possibilities and their limitations of controlling these decision-making processes ‘externally’ (e.g., by Guardianship Courts or committees).The authors discuss those proposals, which clearly dominate the present debate: They all aim to comply with the scientific basis of German law, jurisdiction and the European traditions of philosophy of health care and bioethics. (shrink)

The authors examine recent arguments purporting to show that mental incompetence (lack of decision-making capacity) is not a necessary condition for intervention in a person's best interests without consent. It is concluded that these arguments fail to show that competent wishes could justifiably be overturned. Nonetheless, it remains an open question whether accounts of decision-making capacity based solely on the notions of understanding and appreciation can adequately deal with various complexities. Different possible ways of resolving these complexities are outlined, all (...) of which need further exploration. (shrink)

The Mental Capacity Act will come into force in 2007. It sets out guidelines for the ethical review of research involving incompetent adults which will have an impact on the REC process. This paper attempts to explain the Act's requirements in a way that will give research ethics committees some clarity about what must be considered when reviewing applications. Potential difficulties have been highlighted with guidance as to how these might be resolved.

It is widely accepted among medical ethicists that competence is a necessary condition for informed consent. In this view, if a patient is incompetent to make a particular treatment decision, the decision must be based on an advance directive or made by a substitute decision-maker on behalf of the patient. We call this the competence model. According to a recent report of the United Nations (UN) High Commissioner for Human Rights, article 12 of the UN Convention on the Rights of (...) Persons with Disabilities (CRPD) presents a wholesale rejection of the competence model. The High Commissioner here adopts the interpretation of article 12 proposed by the Committee on the Rights of Persons with Disabilities. On this interpretation, CRPD article 12 renders it impermissible to deny persons with mental disabilities the right to make treatment decisions on the basis of impaired decision-making capacity and demands the replacement of all regimes of substitute decision-making by supported decision-making. In this paper, we explicate six adverse consequences of CRPD article 12 for persons with mental disabilities and propose an alternative way forward. The proposed model combines the strengths of the competence model and supported decision-making. (shrink)

This chapter argues that a successful plea of legal insanity ought to rest upon proof that a criminal act is causally related to symptoms of a mental disorder. Diagnosis of a mental disorder can signal to the court that the defendant had very little control over relevant moral ignorance or incompetence. Must we draw the same conclusion for defendants who lack moral knowledge due to miseducation or other extreme environmental conditions, unrelated to a mental disorder? Adults who were brainwashed as (...) children, for example, might seem “insane” due to their lack of moral knowledge. However, since legal culpability rests on the capacity to understand the criminal law’s moral demands, to reflect on these demands across time, and to control one’s behavior in light of them, simple ignorance of morality's demands does not excuse. (shrink)

This article examines two currently disputed issues regarding public policy for mentally retarded people. First, questions are raised about the legal tradition of viewing mental competence as an all-or-nothing attribute. It is argued that recently developed limited competence and limited guardianship laws can provide greater freedom for retarded people without sacrificing needed protection. Second, the question of who should act paternalistically for retarded people incapable of acting for themselves is examined. Rothman's claim that special formal advocates are the best (...) representatives for retarded people is discussed and criticized. It is argued that parents, professionals and legal advocates should share decision-making authority on behalf of those who are incompetent. (shrink)

The discriminatory effects of categorizing psychiatric patients into competent and incompetent, have urged lawyers, philosophers and health care professionals to seek a functional approach to capacity assessment. Dutch and English law have produced some guidelines concerning this issue. So far, most legal systems under investigation have concentrated on alternatives for informed consent by the patient in case of mental incapacity, notably substitute decision-making, intervention of a judge and advance directives. It is hard to judge the way in which the law (...) may further adapt to a more functional assessment of capacity, because the nature of law shows that legal reforms usually take place only when new methods have been accepted by the field. This is not yet the case today. (shrink)

In this paper we develop a hermeneutic approach to the concept of competence. Patient competence, according to a hermeneutic approach, is not primarily a matter of being able to reason, but of being able to interpret the world and respond to it. Capacity should then not be seen as theoretical, but as practical. From the perspective of practical rationality, competence and capacity are two sides of the same coin. If a person has the capacity to understand the world and give (...) meaning to the situation, he or she is able to make decisions, and is thus competent. People can fail in the area of practical rationality. They can feel ill at ease, uncomfortable or not at home in the situation. Under such conditions, they appear as incompetent, and urge caregivers to respond in such a way that their competence can be raised. The issue is not how to measure their incompetence, but how to help them to become more competent, that is to get a practical grip on their situation and to be able to live out their lives in such a way that they develop their identity in relations with others. From a hermeneutic point of view, assessing a patient's capacity implies focusing on the patient's way of meaning making and regarding her behavior from the perspective of practical rationality. The focus should not be on the assessment as a matter of fact, but on improving capacity. This requires allowing the patient to experience the world meaningfully and affording her, in the context of a supportive and trustful institutional environment, the possibility of developing a personal narrative where her choices are expressed verbally or non-verbally. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Kennedy Institute of Ethics Journal 11.4 (2001) 391-400 [Access article in PDF] Bioethics Inside the Beltway A Shooting on Capitol Hill: "The Ruby Satellite System," Mental Illness, and Failure of the American Legal System Peter J. Cohen On 24 July 1998, Russell Eugene Weston, Jr., stormed the United States Capitol, forced his way through a security checkpoint, bypassed a metal detector, and entered the office complex of Representative Tom (...) DeLay (R-TX), the House Majority Whip (Weil 1998). During this period of terror, he shot and killed two officers of the Capitol Police and seriously wounded another as they attempted to end his foray. 1 Weston was severely wounded by several Capital police officers and taken into custody. After being treated for his injuries, he was incarcerated in the District of Columbia. 2On 5 May 1999, Weston was transferred to the Federal Correctional Institute in Butner, North Carolina (United States v. Weston, 69 F. Supp. 2d 99 (D.D.C. 1999), 103), where he remains to this day. He has neither been brought to trial nor received appropriate psychiatric therapy, but continues to be warehoused "in solitary confinement under constant observation... in a psychotic state (United States v. Weston, 255 F.3d 873; LEXIS 16851 (U.S. App. 2001b), 3-4 [LEXIS]). I will briefly detail the legal events responsible for this mad situation and suggest alternative actions that should have been taken at the very onset of the case. Early Chronology Although overtly the crime appeared to be senseless and without any conceivable motivation, Weston believed that his acts were justified and necessary. The story he told to the court-appointed forensic psychiatrist, Sally C. Johnson, M.D., 3 was that while working for NASA in the early 1980s, he had developed a "Ruby Satellite System," a powerful machine that could reverse time. With access to this system, nothing was permanent--the user could simply reverse time and exit from the current scene. However, the "System" was now controlled by cannibals who were developing and spreading "Black Heva," the deadliest disease known to [End Page 391] humankind, similar to HIV or the plague. It resulted from human corpses rotting and turning black. Time was running out, and Weston believed he had to return to override the "Ruby Satellite System" in the Capitol so that he could stem the spread of "Black Heva" and prevent world calamity. He believed that if he were tried, convicted, and even executed, he could simply time reverse himself, place himself in a safe within the Capitol, and subsequently resume his life at whatever point he chose (United States v. Weston, 206 F.3d 9 (D.C. Cir. 2000), 19-20).On 22 April 1999, the district court accepted Dr. Johnson's diagnosis that Weston suffered from paranoid schizophrenia, the symptoms of which were so severe that he would be incapable of understanding the proceedings against him and of assisting in his own defense. On this basis, the court had no difficulty in finding him incompetent to stand trial (U.S. v. Weston 1999, 102).At Weston's initial hearing, Dr. Johnson had testified that medication would be efficacious in treating Weston's delusions: [T]he standard of care in someone suffering from this type of symptom picture would be to treat them with medication.... [T]here is a good likelihood that he'll have a positive response, positive in the sense that his symptoms will diminish in response to treatment.... The potential benefits to treating the defendant far outweigh the risks.... (U.S. v. Weston 1999, 108) The defense presented no expert testimony refuting Dr. Johnson's presentation. The district court then ordered that Weston begin receiving medication in order to render him nondangerous and competent for trial (U.S. v. Weston 1999, 108-9). The Problem Weston refused to be medicated! 4 He has continued to claim that the administration of antipsychotic drugs against his will would violate his Fifth Amendment due process liberty interest in avoiding unwanted bodily intrusion and implicated... (shrink)

Throughout its history, the insanity defense specifically and the more general concept of mental defect or incompetence have been grounded in the assumption that those people fit for the rule of law are able to give and to comprehend reasons for their actions. This chapter traces the evolution of perspectives on the nature of mental illness and the manner in which cultural and extra-scientific influences have shaped perspectives. These perspectives are most saliently expressed in statutory provisions and relevant case law (...) summarized here and covering historical developments from ancient Greece and Rome to the present. Significant interactions between law and psychiatry are further highlighted and informed by core and controversial philosophical assumptions. Attention is given to differences between juridical and medical conceptions of responsibility. (shrink)

It is well documented that people with moderate-to-severe traumatic brain injury (TBI) can undergo personality changes, including becoming more impulsive in terms of how they behave. Legal guidance and academic commentary support the view that impulsiveness can render someone decisionally incompetent as defined by English and Welsh law. However, impulsiveness is a trait found within the healthy population. Arguably, impulsiveness is also a trait that gives rise to behaviours that should normally be tolerated even when they cause harm to the (...) person enacting the behaviours. The purpose of this paper is to show why both of these considerations present as significant challenges to the law in England and Wales. (shrink)

“I didn’t know what I was doing”. “I was totally out of control.” Since we accept and reject such excuses all the time in practice—and frequently do so with great confidence—we might be expected to have grasped what it means for a volitional excuse to be valid in general and to have developed a well thought out set of criteria for judging the validity of such excuses in practice. But, as it turns out, we have not done either of these (...) things. Hence, we are not now able to argue openly about the validity of particular pleas of ignorance and mental incompetence in practice. I set out to remedy this situation below by articulating the nature of volitional excuses in general and by underscoring the role that our moral expectations play in the validation process.I begin in Part One by exploring the nature of volitional excuses themselves. I argue that volitional excuses are not, as we sometimes assume, heuristic devices for discovering that an individual freely willed her bad actions in some. (shrink)

This article has three parts. The first argues that excuses such as "I didn't know" and "I couldn't help myself" are not, as we are frequently led to believe, vehicles for discovering whether or not an individual's will was free. Instead, they are self-narratives that we produce for the purpose of avoiding blame. The second part explores the particular notion of non-responsibility that governs these self-narratives. The third articulates the role that our judgments of fairness play in decisions to accept (...) or reject pleas of ignorance and mental incompetence in particular cases. (shrink)

Cultural competence, a clinical skill to recognise patients' cultural and religious beliefs, is an integral element in patient‐centred medical practice. In the area of death and dying, physicians' understanding of patients' and families' values is essential for the delivery of culturally appropriate care. Dementia is a neurodegenerative condition marked by the decline of cognitive functions. When the condition progresses and deteriorates, patients with advanced dementia often have eating and swallowing problems and are at high risk of developing malnutrition. Enteral tube (...) feeding is a conventional means of providing artificial nutrition and hydration to meet nutritional needs, but its benefits to the frail population are limitedly shown in the clinical evidence. Forgoing tube feeding is ethically challenging when patients are mentally incompetent and in the absence of an advance directive. Unlike some developed countries, like the United States of America, death and dying is a sensitive issue or even a taboo in some cultures in developing countries that forgoing enteral tube feeding is clinically and ethically challenging, such as China and Malaysia. This article in three parts 1) discusses the clinical and ethical issues related to forgoing tube feeding among patients with advanced dementia, 2) describes how Hong Kong Chinese, North American, and Malaysian Islamic cultures respond differently in the decision‐making patterns of forgoing tube feeding for patients with advanced dementia, and 3) reiterates the clinical implications of cultural competence in end‐of‐life care. (shrink)

This essay argues that Dworkin, Feinberg and others who claim exceptions against the principle of paternalism for the sake of preventing seroius physical harm are forced to treat mature adults as mental incompetents and that they are forced to do so by the prevailing concept of paternalism itself. The essay then shows how we can get around this dilemma by re-thinking paternalism as part of distinctly paternal relationships of domination and inequality.

The best interests principle is commonly utilized in acute care settings to assist with decision making about life-saving and life-sustaining treatment. This ethical principle demands that the decision maker refers to some conception of quality of life that is relevant to the individual patient. The aim of this article is to describe the factors that are required to be incorporated into an account of quality of life that will provide a morally justifiable basis for making a judgement about the future (...) quality of life, and therefore the best interests, of critically ill patients who are mentally incompetent. This account consists of three major components - pain and suffering, body functioning, and autonomy - and is applicable in situations where very limited information is available to guide decision making. This framework helps to make decisions about the provision of life-saving treatment that are as consistent as possible in all patient situations. (shrink)

The McNaughton rules for determining whether a person can be successfully defended on the grounds of mental incompetence were determined by a committee of the House of Lords in 1843. They arose as a consequence of the trial of Daniel McNaughton for the killing of Prime Minister Sir Robert Peel’s secretary. In retrospect it is clear that McNaughton suffered from schizophrenia. The successful defence of McNaughton on the grounds of mental incompetence by his advocate Sir Alexander Cockburn involved a profound (...) shift in the criteria for such a defence, and was largely based on the then recently published scientific thesis of the great US psychiatrist Isaac Ray, entitled A Treatise on the Medical Jurisprudence of Insanity. Subsequent discussion of this defence in the House of Lords led to the McNaughton rules, still the basis of the defence of mental incompetence in the courts of much of the English-speaking world. This essay considers one of these rules in the light of the discoveries of cognitive neuroscience made during the 160 years since Ray’s treatise. A major consideration is the relationship between the power of self-control and irresistible impulse as conceived by Cockburn on the one hand, and by cognitive neuroscience on the other. The essay concludes with an analysis of the notion of free will and of the extent to which a subject can exert restraint in the absence of particular synaptic connections in the brain. (shrink)

Aims: To assess patient receipt of written information. To ensure patients understand the written information about a resuscitation policy and to determine whether they disapproved of or had concerns about the policy. Methods: All admissions to four wards of the hospital were approached for an interview. A set questionnaire was asked by one of 2 interviewers. Results: 72% of 572 admissions were interviewed. Refusal accounted for only 2 of the people not interviewed. 11% were unable to advocate for themselves by (...) reason of mental incompetence, inability to communicate or impairment secondary to their illness. Of the 401 interviewed only 49% recalled receiving the patient information booklet. Few patients (17%) recalled reading the information in the patient information booklet. They were all then given the paragraph about the hospital’s resuscitation policy. 352 were asked their understanding and only 61% demonstrated that they understood the paragraph. 91% of all 401 patients approved of the hospital having the option of DNR orders. 31% of people however had concerns related to DNR orders. These are discussed. Conclusions: Many acutely unwell patients are unable to advocate for themselves. Written information is a poor method of communicating with patients. There was limited receipt of the information and many misunderstood the paragraph about the hospitals resuscitation policy. There was a wide range of patient thoughts and concerns expressed. (shrink)

After establishing that the requirement that those criminals who stand for execution be mentally competent can be given a recognizably retributivist rationale, I suggest that not only it is difficult to show that executing the incompetent is more cruel than executing the competent, but that opposing the execution of the incompetent fits ill with the recent abolitionist efforts on procedural concerns. I then propose two avenues by which abolitionists could incorporate such opposition into their efforts.

What does it mean to respect autonomy and encourage meaningful consent to treatment in the case of patients who have dementia or are otherwise incompetent? This question has been thrown into sharp relief by the Law Lords' decision in R.v Bournewood Community and Mental Health NHS Trust, ex parte L.

An assessment of decision-making capacity is the accepted procedure for determining when a person is not competent. An inferential gap exists between the criteria for capacity specific abilities and the legal requirements to understand relevant information and appreciate the consequences of a decision. This gap extends to causal influences on a person'scapacity to decide. Using a published case of depression, we illustrate that assessors' uses of diagnostic information is frequently not up to the task of bridging this inferential gap in (...) a justifiable way. We then describe cases of faulty judgement which challenge the understanding of diagnostic causal influences. These cases help to clarify the nature of the expertise required for capacity assessments. In practice, the requirements of decision-making capacity are often abandoned to other considerations due to a lack of requisite expertise. The legal policy supporting decision-making capacity as a means to protective intervention is justified only if the requisite expertise is developed. We propose the requisite expertise to be developed in the long term as a distinct multidisciplinary endeavour. (shrink)

Many liberal political philosophers hold that the state should not impose or even promote any particular conception of the good life or human flourishing. It should not, for instance, enact laws and policies designed to elevate citizens' tastes, to refine their sensibilities or to perfect their characters. Instead, the state should restrict itself to maintaining a fair framework of rights and opportunities within which all citizens can pursue their own beliefs about what constitutes a good life. Against this backdrop, Collis (...) Tahzib develops a version of perfectionist political philosophy. Whereas previous perfectionists have argued that the promotion of flourishing ways of life is permissible or legitimate, Tahzib casts perfectionism as a doctrine of justice. On this view, the implementation of laws and policies designed to promote sound ideals of the good life--ideals such as moral, intellectual and artistic excellence--is not merely a legitimate complement to justice but an essential constituent of justice. Over the years, perfectionism has faced various objections: that it is premised on values and judgements that are controversial within modern pluralistic societies; that it is unduly restrictive of freedom or autonomy; that it treats citizens as if they are children, unable to run their own lives; that it expresses the meddlesome mentality of a village busybody; that it mistakenly assumes that there are objective truths about human flourishing; and that it risks the abuse of power by incompetent, overzealous or corrupt state officials. These ideas represent some of the deepest, most vibrant and most powerful strains in liberal thought. In defending perfectionism against these charges, the arguments in A Perfectionist Theory of Justice make a novel and important contribution to longstanding debates about the philosophical foundations of liberalism. (shrink)

Surely since the Enlightenment, if not before, the study of mind has centered principally on how man achieves a “true” knowledge of the world. Emphasis in this pursuit has varied, of course: empiricists have concentrated on the mind’s interplay with an external world of nature, hoping to find the key in the association of sensations and ideas, while rationalists have looked inward to the powers of mind itself for the principles of right reason. The objective, in either case, has been (...) to discover how we achieve “reality,” that is to say, how we get a reliable fix on the world, a world that is, as it were, assumed to be immutable and, as it were, “there to be observed.”This quest has, of course, had a profound effect on the development of psychology, and the empiricist and rationalist traditions have dominated our conceptions of how the mind grows and how it gets its grasp on the “real world.” Indeed, at midcentury Gestalt theory represented the rationalist wing of this enterprise and American learning theory the empiricist. Both gave accounts of mental development as proceeding in some more or less linear and uniform fashion from an initial incompetence in grasping reality to a final competence, in one case attributing it to the work out of internal processes or mental organization, and in the other to some unspecified principle of reflection by which—whether through reinforcement, association, or conditioning—we came to respond to the world “as it is.” There have always been dissidents who challenged these views, but conjectures about human mental development have been influenced far more by majoritarian rationalism and empiricism than by these dissident voices. Jerome Bruner is research professor of psychology at New York University, where he is also serving as Meyer Visiting Professor of Law. His most recent book, Acts of Meaning, appeared in 1990. In 1987 he received the Balzan Prize for “a lifetime contribution to the study of human psychology.”. (shrink)

This paper explores the value of respect for personal autonomy in relation to clearly immoral and irrational acts committed freely and intentionally by competent people. Following Berlin's distinction between two kinds of liberty and Darwall's two kinds of respect, it is argued that coercive suppression of nonautonomous, irrational, and self-harming acts of competent persons is offensive to their human dignity, but not disrespectful of personal autonomy. Irrational and immoral choices made by competent people may claim only the negative liberty to (...) be left alone. Lives disposed to autonomy are worthy of solidarity and active support in addition to the right of free choice and action. Autonomous premeditated desires (distinguished from mere consent) may embody transcendental choices, which transcend consideration of physical and psychological well-being. Choices made by incompetent persons (e.g., children and the mentally disabled) are not related to autonomy, but to self-directedness. The value of human dignity confers protection to self-directedness, but not at the expense of other vital interests. (shrink)

IntroductionBorderline personality disorder patients are often subjected to inpatient compulsory care due to suicidal behaviour. However, inpatient care is usually advised against as it can have detrimental effects, including increased suicidality.AimTo investigate what motives psychiatrists have for treating borderline personality disorder patients under compulsory care.Materials and MethodsA questionnaire survey was distributed to all psychiatrists and registrars in psychiatry working at mental health emergency units or inpatient wards in Sweden. The questionnaire contained questions with fixed response alternatives, with room for comments, (...) about the respondents’ motives for practising compulsory care of borderline personality disorder patients. The responses were analysed quantitatively with descriptive statistics, and comments were analysed with qualitative descriptive content analysis.ResultsThe psychiatrists’ views were divided on when it was justified to treat borderline personality disorder patients under compulsory care, as were their views on borderline personality disorder patients’ decision competence. When there was an assessed risk of harm, 53% were positive to compulsory care of decision-competent borderline personality disorder patients and another 31% because they considered the patients to be decision incompetent in such situations. Adding the risk of harm caused many respondents to alter their assessment of the patient from decision competent to decision incompetent.ConclusionThe large variations in doctors’ opinions indicate that the care of borderline personality disorder patients is arbitrary. Further, the assessed risk of harm increases the use of compulsory care, even though such care is advised against in clinical guidelines, has questionable legal support, and could lead to an increased suicide risk over time. (shrink)

Children and young people under 18 years old should no longer be regarded as incompetent to give or withhold consent in decisions involving their health care, Recent research suggests a functional test of cognitive and emotional maturity, rather than a strict age cut-off point. However, it is often difficult to implement these recommendations in practice, not least because the law is, if anything, increasingly 'hard-line' about children's autonomy.

The case of W v M and Others, in which the court rejected an application to withdraw artificial nutrition and hydration from a woman in a minimally conscious state, raises a number of profoundly important medico-legal issues. This article questions whether the requirement to respect the autonomy of incompetent patients, under the Mental Capacity Act 2005, is being unjustifiably disregarded in order to prioritise the sanctity of life. When patients have made informal statements of wishes and views, which clearly—if not (...) precisely—apply to their present situation, judges should not feel free to usurp such expressions of autonomy unless there are compelling reasons for so doing. (shrink)

Several bioethicists have recently advocated the force-feeding of prisoners, based on the assumption that prisoners have reduced or no autonomy. This assumed lack of autonomy follows from a decrease in cognitive competence, which, in turn, supposedly derives from imprisonment and/or being on hunger strike. In brief, causal links are made between imprisonment or voluntary total fasting and mental disorders and between mental disorders and lack of cognitive competence. I engage the bioethicists that support force-feeding by severing both of these causal (...) links. Specifically, I refute the claims that VTF automatically and necessarily causes mental disorders such as depression, and that these mental disorders necessarily or commonly entail cognitive impairment. Instead, I critically review more nuanced approaches to assessing mental competence in hunger strikes, urging that a diagnosis of incompetence be made on a case-by-case basis—a position that is widely shared by the medical community. (shrink)

In this paper, we examine the lawfulness of a proposal to provide elective ventilation to incompetent patients who are potential organ donors. Under the current legal framework, this depends on whether the best interests test could be satisfied. It might be argued that, because the Mental Capacity Act 2005 (UK) (and the common law) makes it clear that the best interests test is not confined to the patient's clinical interests, but extends to include the individual's own values, wishes and beliefs, (...) the proposal will be in the patient's best interests. We reject this claim. We argue that, as things currently stand, the proposal could not lawfully be justified as a blanket proposition by reference to the best interests test. Accordingly, a modification of the law would be necessary to render the proposal lawful. We conclude with a suggestion about how that could be achieved. (shrink)

Advance directives (ADs), which are also sometimes referred to as ‘living wills’, are statements made by a person that indicate what treatment she should not be given in the event that she is not competent to consent or refuse at the future moment in question. As such, ADs provide a way for patients to make decisions in advance about what treatments they do not want to receive, without doctors having to find proxy decision-makers or having recourse to the doctrine of (...) necessity. While patients can request particular treatments in an AD, only refusals are binding. This paper will examine whether ADs safeguard the autonomy and best interests of the incompetent patient, and whether legislating for the use of ADs is justified, using the specific context of the legal situation in the United Kingdom to illustrate the debate. The issue of whether the law should permit ADs is itself dependent on the issue of whether ADs are ethically justified; thus we must answer a normative question in order to answer the legislative one. It emerges that ADs suffer from two major problems, one related to autonomy and one to consent. First, ADs’ emphasis on precedent autonomy effectively sentences some people who want to live to death. Second, many ADs might not meet the standard criteria for informed refusal of treatment, because they fail on the crucial criterion of sufficient information. Ultimately, it transpires that ADs are typically only appropriate for patients who temporarily lose physical or mental capacity. (shrink)

The traditional view that having a personality disorder, unlike other mental disorders, is not usually reason enough to consider a person incompetent to make healthcare decisions is challenged. The example of a case in which a woman was treated for a physical disorder without her consent illustrates that personality disorder can render a person incompetent to refuse essential treatment, particularly because it can affect the doctor–patient relationship within which consent is given.

Advance directives for psychiatric care are the subject of debate in a number of Western societies. By using psychiatric advance directives , it would be possible for mentally ill persons who are competent and with their disease in remission, and who want timely intervention in case of future mental crisis, to give prior authorisation to treatment at a later time when they are incompetent, have become non-compliant, and are refusing care. Thus the devastating consequences of recurrent psychosis could be (...) minimised.Ulysses contracts raise a number of ethical questions. In this article the central issues of concern and debate are discussed from a narrative perspective. Ulysses contracts are viewed as elements of an ongoing narrative in which patient and doctor try to make sense of and get a hold on the recurrent crises inherent in the patient's psychiatric condition. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Psychodramatic Psychotherapy for Schizophrenic IndividualsJohn Nolte, MD, PhD (bio)As a long-time student, practitioner, trainer, author and advocate of J. L. Moreno, MD,’s works and specifically the psychodramatic method, I am always appreciative of efforts, like Chapy’s, to commend and advocate for psychodrama. This is especially so because for a time, Moreno and psychodrama were heavily criticized, even maligned in the mental health professions. At the same time, considering how (...) poorly Moreno and his methods have been understood as well as the difficulty of accessing his original material, I feel an obligation to set the record straight when confronted with incomplete, inadequate, or sometimes incompetent expositions of Moreno’s psychodrama.Chapy’s article recommends psychodrama as a treatment method for schizophrenic people by calling upon existentialist and phenomenological concepts. Psychodrama, he proposes, opens up existence by allowing “schizophrenic patients to incorporate the experience of an ‘absolutely other.’”There are major flaws in Chapy’s presentation. His “clinical illustration,” the presentation of a psychodrama with a schizophrenic patient, while it may be considered psychodrama under the broadest definition of the term, hardly fulfills the requirements of a psychotherapeutic psychodrama. We must question the competence of the psychodramatist in Chapy’s example. Chapy’s description of the drama itself falls short of being an adequate account of a psychodrama, failing to convey the emotional intensity and realness which a well directed and reported psychodrama achieves. We do not learn, for example, if Damien’s perception of his father is introduced through role reversal with the father, a standard psychodramatic technique which is done in order to give the auxiliary ego taking that role an understanding how Damien experiences his father. We do not know if role reversals are made throughout the drama so that Damien can experience how he is perceived by father, can feel the force of his confrontation in the role of father, and is required to reply as his father to his confrontation. We are given little information about the psychodramatic techniques employed by the director other than the scene setting of the studio in which the psychodramatic [End Page 227] encounter takes place, and the soliloquy in which Damien expresses his worry and hopes for the outcome of the confrontation. It should be clear in the description of the drama whether the father’s statements in the drama were produced by Damien in role reversal, or by the auxiliary ego playing the role. There is a difference and it is significant. Although we are told that Damien “evokes a systematic relationship between him and his father” during the psychodrama, we do not see how this happens. Every psychodrama is an existential experience and its description should fully communicate its meaning and emotion.A more serious problem, however, is that this drama does not deal with Damien’s psychosis. Although Damien may be diagnosed as schizophrenic, his disorder is obviously in remission or controlled by psychotropic drugs. The drama reveals none of the hallucinations, delusions, or disorder characteristic of schizophrenic disorders. It could be psychodrama of any young man with a complaint about his father.The notion that people with schizophrenia can be successfully treated by psychodrama is not new. Moreno began developing psychodramatic psychotherapy at his Beacon Hill Sanitarium, established in 1936. He and psychodrama gained some fame because of his success in treating schizophrenic patients at a time when schizophrenic individuals were considered incapable of benefitting from psychotherapy. Moreno’s approach to the treatment of schizophrenic patients was much more robust than the psychodrama described by Chapy. During a psychotic attack, the individual’s perception of the world and self are distorted in ways that made action and interaction in the world of conventional reality impossible. Additionally, the psychotic episode makes the psychotic person incapable of being comprehended by anyone else, including the psychiatrist. Moreno’s solution was to make the chaotic, bewildering, sometimes violent and always terrifying inner world visible and tangible in the surplus reality of the psychodramatic stage. In moments of lucidity following the psychotic episode, he asked his schizophrenic patients to reenact their psychotic experiences. The result was that, “In this imaginary reality on the psychodramatic stage, the... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Narcissism, Empathy and Moral ResponsibilityRonald W. Pies, MD (bio)Professor Fatic’s timely and wide-ranging essay demonstrates how the topic of narcissism has undergone a resurgence of interest in recent decades. This may owe, in part, to the controversial claim that narcissism is on the rise in the United States, at least among American college students (Twenge & Foster, 2010). As I discuss presently, the term “narcissism” is open to many (...) interpretations, and differs somewhat from the specific designation, Narcissistic Personality Disorder (NPD), as defined in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (American Psychiatric Association, 2013). As Fatic rightly notes,Narcissism as a personality structure may or may not be diagnosed as NPD, depending on various criteria, perhaps most importantly on whether the narcissistic person actually encounters functional and emotional difficulties and shows up for diagnosis and evaluation.As Professor Fatic’s essay clearly shows, narcissism (variously defined) has important “ethical ramifications.” Fatic is primarily interested in exploring the relationship between what he calls the narcissist’s “emotional incompetence” and that person’s degree of moral responsibility. To oversimplify Fatic’s complex set of interlinked arguments, Fatic concludes that “emotional incompetence does not in fact reduce the moral responsibility of a narcissist person, whether diagnosed with Narcissistic Personality Disorder or not.” Drawing on the moral theories of Philip Pettit and Michael Slote—in particular, Slote’s “sentimentalist ethics” with its emphasis on empathy (Slote, 2004)—Fatic argues that narcissism is both “a moral failure and a psychopathology.” Nevertheless, for Fatic, narcissists remain “fully morally responsible for their insensitivity and interpersonal emotional incompetence.” Why? Because they have the moral duty “to acquire the moral and emotional competence required for the making of moral choices.”Some Philosophical ConcernsAs I understand Fatic’s argument, he is asserting that the narcissist ought to be held responsible for a kind of self-education process that will ameliorate his or her emotional incompetence. Fatic writes,[W]e develop our morality through constant moral education and testing, which we receive both through socialization and through our own efforts later in life, as autonomous human beings. [End Page 173]We are thus responsible for what kind of moral actors we are and are becoming based on our way of life, and have a moral duty to improve our own moral senses and sensibilities by constantly working on the development of virtues.It seems to me that this line of reasoning assumes that all, or most, narcissists possess the capacity to seek and acquire this “moral education.” Perhaps so—but I am not sure Fatic has demonstrated this. It seems at least plausible that, in virtue of the adverse developmental and perhaps even neurological factors that may generate the narcissistic personality (Fan et al., 2011), some narcissists may lack the capacity to modify their psychopathology by means of “moral education.” This leads me to wonder whether Professor Fatic has adequately explored the very heterogeneous nature of narcissism. Indeed, Fatic’s thesis seems to point toward a kind of Platonic “essence” of narcissism, conveyed by his frequent allusion to “the narcissist”—one of whose defining or essential features is said to be a lack of empathy.But, as I will suggest presently, this is at best an oversimplification of narcissism as psychiatrists understand the term. Indeed, there are degrees and varieties of narcissism, differing in their capacity for empathy—which is itself a psychologically complex term. Recent research suggests that “narcissistic personality disorder symptomatology does not reflect a “narcissist” category but rather a continuum of narcissistic pathology” (Aslinger, Manuck, S. Pilkonis, Simms, & Wright, 2018).Furthermore, Professor Fatic’s thesis seems to view “moral responsibility” as a binary construct; i.e., either one possesses, or does not possess, full moral responsibility. But as I have argued elsewhere, moral responsibility may be viewed as lying along a continuum that reflects varying degrees of voluntariness for any given individual (Pies, 2007).Consequently, in my view, any valid assessment of the “the narcissist’s” moral responsibility must consider both the heterogeneity of narcissism and the non-binary (i.e., continuous) nature of moral responsibility.One way of conceptualizing this “two-track” model is... (shrink)

Background The principle of human dignity is woven into the ethical principles of the midwifery profession, noted as both an obligation and a human right. Research Objectives The aim of this study is to explore the experiences of midwifery students regarding threats to women's dignity during childbirth. Research Design This is a qualitative study with explorative design. Participants and Research Context: The research was carried out in 2022 at Kermanshah University of Medical Sciences, involving 32 midwifery students in individual interviews (...) that lasted between 30 and 90 minutes. These participants aged 21 to 28 years, with an average age of 23.5 years, provided their perspectives on the matter. Results Four key themes described the threats to women’s dignity during childbirth: 1) professional incompetence, 2) abuse of power imbalance, 3) caring only for physical and not mental health, and 4) structural issues within the healthcare system. Professional incompetence was characterized by outdated practices and lack of adherence to evidence-based medicine. Abuse of power imbalance was demonstrated in instances where the authoritative position of healthcare providers was misused, thereby disrupting the respectful care that women are entitled to receive. The disproportionate emphasis on physical health over mental health was evidenced by the disregard for mothers' psychological well-being during childbirth. Lastly, systemic structural issues emerged as significant impediments, revealing the need for system-wide changes. Ethical considerations: This study was approved by the Ethics Committee of the Research Deputy at Kermanshah University. Participation was voluntary and the confidentiality were maintained. Conclusion The findings underscore the role that unprofessional behavior, ethical lapses in medical practices, and systemic challenges play in undermining maternal dignity during childbirth. These threats necessitate urgent attention and must be adequately addressed in policy development and program implementation to safeguard the dignity of mothers during childbirth. (shrink)