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Ulysses Arrangements in Psychiatric Treatment: Towards Proposals for Their Use Based on ‘Sharing’ Legal Capacity

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Abstract

A ‘Ulysses arrangement’ (UA) is an agreement where a patient may arrange for psychiatric treatment or non-treatment to occur at a later stage when she expects to change her mind. In this article, I focus on ‘competence-insensitive’ UAs, which raise the question of the permissibility of overriding the patient’s subsequent decisionally competent change of mind on the authority of the patient’s own prior agreement. In “The Ethical Justification for Ulysses Arrangements”, I consider sceptical and supportive arguments concerning competence-insensitive UAs, and argue that there are compelling reasons to give such UAs serious consideration. In “Decisional Competence and Legal Capacity in UAs”, I examine the nature of decisional competence and legal capacity as they arise in UAs, an issue neglected by previous research. Using the distinctions which emerge, I then identify the legal structure of a competence-insensitive UA in terms of the types of legal capacity it embodies and go on to explain how types of legal capacity might be shared between the patient and a trusted other to offer support to the patient in the creation and implementation of a competence-insensitive UA. This is significant because it suggests possibilities for building patient support mechanisms into models of legal UAs, which has not addressed in the literature to date. Drawing on this, in “Using Insights from the Competence/Capacity Distinction to Enhance Patient Support in UAs”, I offer two possible models to operationalize competence-insensitive UAs in law that allow for varying degrees of patient support through the involvement of a trusted other. Finally, I outline some potential obstacles implementing these models would face and highlight areas for further research.

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Notes

  1. For simplicity, in this article I will refer to the person experiencing mental disorder as the ‘patient’, though this does not mean that she is being or has been treated in hospital for her disorder.

  2. See, in particular, Re T (adult: refusal of medical treatment) [55] 4 All ER 649 and Airedale NHS Trust v Bland [2] AC 789. s. 24–26 of the MCA provides the statutory basis for advance directives.

  3. The MCA would permit some types of psychiatric advance directive, though they would be limited in scope—they could not apply to mental health treatment for patients detained in a psychiatric hospital under the Mental Health Act 1983 as amended by the Mental Health Act 2007 [41], though s. 58A of the amended Act makes an exception for electro-convulsive therapy. For a discussion see Bowen [10, p. 175].

  4. In English law, this is recognised under s. 25(3) of the MCA.

  5. It may also be possible for significant personal identity change to occur despite retention of decisional competence. Whether this would lead to the creation of a successor ‘person’ inhabiting the same body, however, is contested (e.g. [11, esp. pp. 288–298, 22, pp. 83–87, 46, esp. pp. 144–146, [51, esp. chapter 10]). Instances of personal identity change that are so great that the patient who creates a competence-insensitive UA and herself at the time it is intended to apply are essentially two different people (i.e. where the patient has undergone a numerical change in identity) lie outside the focus of this paper. Here, I agree with Davis [14], who claims that “cases of disrupted personal identity require separate discussion and are probably more rare than the philosophical literature would suggest” (ibid., 90). I am grateful to one of the anonymous reviewers for encouraging me to emphasise this point.

  6. For a discussion of competence-sensitive UAs, see Srebnik and Kim [63].

  7. This focus is also adopted by Davis [14] and Walker [69].

  8. Gremmen et al. [26] have argued for the importance of relational values in UAs from an ethics of care standpoint, though their research does not consider the ways in which these values could be realised within a legal framework.

  9. Prior attempts to suggest patient representation or advocacy in such contexts have omitted any discussion of specific proposals—see Culver and Gert [13, pp. 170–171] and Saks [58, p. 207].

  10. Although there is no particular legal provision that specifically relates to this, s. 25(3) of the MCA makes clear in relation to advance decisions that “An advance decision is not applicable to the treatment in question if at the material time P has capacity to give or refuse consent to it”. Additionally, s. 24(1) of the MCA makes clear that advance directives allow for advance refusals only—anticipatory treatment wishes cannot form part of an advance directive. An English case law judgment from 2003 also stipulates that “[a]ny condition in an advance directive purporting to make it irrevocable is contrary to public policy and void” (Munby J in HE v A Hospital NHS Trust [30] EWHC 1017 (Fam) at para. 37). It can be deduced from this that competence-insensitive UAs, whilst different from advance decisions to refuse treatment, would be deemed to conflict with established legal principles in related areas of law and thus considered unlawful.

  11. Writing from a US perspective, Srebnik and Kim [63] are abundantly clear about this: “A person with decision-making capacity can always revoke an advance directive” (ibid., 506) and they also note that two US states, Arizona and Washington, permit patients making a psychiatric advance directive (i.e. a competence sensitive UA) to decide to make it capable of being withdrawn when they are decisionally incompetent (ibid., 507). Aside from US states, in the Netherlands, Gremmen et al. note that amendments in 2005 and 2006 to the Bijzondere Opnemingen in Psychiatrische Ziekenhuizen (BOPZ) Act of 1994 enshrine competence-sensitive UAs with regard to admission to hospital for treatment as well as treatment outside of hospital (Gremmen et al. [26, p. 77]; Gremmen [27, p. 172]). The current Dutch legal position, which became effective in 2008, is discussed and evaluated in Berghmans and van der Zanden [6].

  12. Macklin claims this reveals two opposing approaches of the patient towards her condition and the nature of psychiatric intervention: “the individual who enters into a Ulysses contract seeks protection from psychosis; the maker of a psychiatric will seeks protection from psychiatry” [39, p. 43].

  13. Saks’s use of ‘right’ in this context raises the question of whether a right can be held against one’s “later self”. My view is that there is no right against my later self as such—instead, I am waiving my right to exercise full choice in a particular future scenario in which I would normally be able to do so (e.g. to decide whether or not I have treatment for my mental disorder). This is because, following Beyleveld and Brownsword [5], “’my future selves’ develop from, and are extensions of, ‘my present self’, and this fact distinguishes relations between my ‘present’ and ‘future selves’ from my relations to others” (ibid., p. 107). Since, for this reason, I am an indivisible rights-holder, “…. I cannot properly be said to have past, present and future selves. All there is is me at different times” (ibid.). I thank one of the anonymous reviewers for suggesting I consider this point.

  14. I use ‘oneself in the future’ rather than one’s ‘future self’ to avoid creating the impression that I am assuming the future self is metaphysically or morally speaking a different self from the present self. For a discussion of why spatio-temporal embodiment should suppose a unity of selfhood in ethical terms, see Beyleveld and Brownsword [5, p. 107].

  15. Radden gives the example of a patient whose stay in hospital is extended due to following her changed wishes.

  16. For discussions which are sceptical of this antagonistic relationship between autonomy and paternalism, see VanDeVeer [67] and Moody [42].

  17. For an argument that supports the claim that self-integrity should be construed as a basic right that requires the support of others as well as non-interference (i.e. a positive right as well as a negative right), see [23, esp. p. 54 and pp. 232–233, and 24, pp. 55–56].

  18. Another justification of UAs, offered by Van Willigenberg and Delaere [66], points to the relevant sense of autonomy involved in UAs as key to the justification of respecting the patient’s earlier wishes. For them, UAs represent a form of “non-autonomous self-commitment” (ibid., p. 401) that shield the patient from harmful consequences (ibid., 403). They do not further “autonomy as sovereignty” (ibid., p. 398) but instead facilitate the autonomous authenticity of the self, which is “a necessary condition for sovereignty” (ibid., p. 406) and is “what is most fundamentally threatened in episodes of serious disorder”. (ibid., p. 397). Although they maintain that UAs “can protect a patient’s authenticity by seeing that the deep concerns that constitute his or her identity are safeguarded” (ibid., p. 407), they do not discuss the significance of competence at all. Whilst an approach which seeks to distinguish forms of autonomy could be used to justify a competence-insensitive UA, since van Willigenberg and Delaere’s account represents a high standard of autonomy to satisfy, it is likely that their account relates to competence-sensitive UAs, though as Davis points out, this is unclear [14, p. 93].

  19. When measured in terms of s. 3(1) of the Mental Capacity Act [40] and the English common law test for capacity set out in Re C (Adult: Refusal of Medical Treatment) [53] 1 All ER 819 which it subsumes.

  20. Employing a varying standard of decisional competence would be problematic under any legal framework, such as that in England and Wales, where a standard statutory test for capacity exists (set out in the MCA, s. 2(1) and s. 3(1) and previously elaborated in the common law in Re C [Adult: Refusal of Medical Treatment] [53] 1 All ER 819 at p. 824), and especially because of the legal principle underpinning this test, which recognises that competent decisions can be unwise (40, s. 1(4)) and made, technically, “for rational or irrational reasons or for no reason at all” (Butler-Sloss L. J. in Re MB (Adult: Medical Treatment) [54] 38 BMLR 175 at p. 186).

  21. See Lock and Munby [37] for further discussion of the effect of beliefs on judgments of capacity.

  22. See “Decisional Competence and Legal Capacity in UAs” below.

  23. I am grateful to one of the anonymous reviewers for encouraging me to clarify this point.

  24. In this context, patient support is related closely to the idea of ‘supported decision-making’, which I explain and justify in [9].

  25. A more detailed discussion is offered in [8, pp. 16–28].

  26. A principle recognised in English law by Thorpe J in Re C [Adult Refusal of Medical Treatment] [53] 1 All ER 819 at p. 824 in and enshrined in MCA s. 2(3)(b), reiterated in Department of Constitutional Affairs [15, pp. 57–58, para. 4.48].

  27. For a critical assessment of the functional approach in practice, see Donnelly [17].

  28. Outcome based approaches are rejected by MCA s. 1(4) and were rejected prior to the MCA at common law—see the judgment of Butler-Sloss LJ Re MB (adult: medical treatment) [1997] 38 BMLR 175 at p. 186. They do, however, command support amongst some bioethicists—see Wilks [71].

  29. An adult patient is, by virtue of their status, presumed to have decisional competence under MCA s. 1(2) unless this can be shown not to be the case—see also Lord Donaldson’s judgment in Re T [Adult Refusal of Medical Treatment] [55] 4 All ER 649 at p. 661.

  30. Radden [50, p. 797] draws attention to the problems of measuring decisional competence in psychiatry according to commensurable criteria, especially in respect of some patients with episodic mental disorders who, “shift and vacillate where on some understandings of competence, both formal and intuitive, they are, on others they are not competent” (ibid.). This point is more relevant for patients whose decisional competence at t2 is tenuous, whereas the patients who are the focus of this article would more clearly fall within established criteria for having decisional competence at t2, both according to ethical and legal standards.

  31. We can also identify a fourth sense of legal capacity where a child’s legal capacity is exercised on her behalf by a person with parental responsibility for the child, which I have called ‘fiduciary legal capacity’—see [8, pp. 35–36], although this is not relevant to the present discussion.

  32. Pattinson [47, p. 152] refers to what I call ‘delegable legal capacity’ as ‘proxy capacity’, which is essentially the same concept.

  33. This should not be confused with the idea of an ‘enduring power of attorney’, a legal instrument which has now been replaced by ‘lasting powers of attorney’ (LPA) in English law under the MCA, and is an example of the second, not the third, sense of legal capacity described here.

  34. In a seminal two-part article on the nature of legal rights, Hohfeld [32, 1917] identifies “‘joint’ rights and duties” that are held by “group of persons”, though this is discussed in the context of rights and correlative duties, as opposed to (in Hohfeld’s own taxonomy) powers and correlative liabilities, which would be more apt here (ibid., p. 718, n. 17). For sustained discussions of legal powers, see Bentham [4] and Hart [29], and for legal competence, see Spaak [61].

  35. See also the further information on advance directives in Vermont available on the National Resource Center on Psychiatric Advance Directives [44].

  36. Szmukler describes joint crisis plans as constituting: “much more than a statement of treatment preferences or refusals … it may include early signs of relapse, what has proven helpful in the past in aborting a relapse, what treatments have proven successful (or unsuccessful) when relapse has become established, informal or formal carers who should be contacted, when admission would be indicated, adverse drug effects and practical needs” [65, p. 462].

  37. Berghmans and van der Zanden [6] also endorse the use of a values history, though in the context of competence-sensitive rather than competence-insensitive UAs (ibid., 18).

  38. These were created under the Mental Health Act 2007 though the type of patients under consideration in this article would not at present be eligible for assistance from independent mental health advocacy services. See Department of Health, Code of Practice: Mental Health Act 1983 (TSO, 2008) [16], pp. 157–158, paras. 20.4–20.7].

  39. For instance, since the proposals here relate to constraining rather than negating autonomous choice at t2, and it is the latter, not the former, which is covered more obviously by the prohibition on irrevocability in advance directives (Munby J in HE v A Hospital NHS Trust [2003] EWHC 1017 (Fam) at para. 37—see also note 10, above), it would seem possible to draw a legal distinction between anticipatory decision-making in healthcare which is irrevocable and that which places constraints upon future choice, though where the possibility of revocation remains.

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Acknowledgments

Early ideas contained in this article were presented to the Law School at The University of Hull in 2009. Draft versions were presented at the Socio-Legal Studies Association 2009 Annual Conference, at the Society for Applied Philosophy 2009 Annual Conference, on the ‘Autonomy and Mental Health’ panel at the Concepts of Health and Illness conference at UWE Bristol in 2010 and on the ‘Mental Health Law’ panel at the Royal College of Psychiatrists 2011 International Congress in Brighton. I also benefited from discussing some of the ideas presented here at The University of Cambridge Faculty of Philosophy round-table seminar, ‘Vulnerability, Mental Disorder and Paternalism’ in 2010. Thanks to everyone who offered useful comments on all these occasions, especially to Dr Lubomira Radoilska who invited me to present at the Cambridge seminar and Bristol conference and to Dr Elizabeth Fistein who invited me to participate in the Royal College of Psychiatrists conference. I am grateful also to Dan Metcalf for his valuable research assistance and to the anonymous reviewers as well as Dr Tony Ward whose comments have helped to improve aspects of the arguments.

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Bielby, P. Ulysses Arrangements in Psychiatric Treatment: Towards Proposals for Their Use Based on ‘Sharing’ Legal Capacity. Health Care Anal 22, 114–142 (2014). https://doi.org/10.1007/s10728-012-0215-2

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