Abstract
Regarding patients’ valid informed consent to treatment, it is a still contested issue, whether the level of required decisional competency should mirror the riskiness of the treatment at stake. This chapter attempts to refute such a risk-relative conception of competence (RRCC) on the basis of a systematic analysis of relevant arguments, both conceptual and normative ones. A misconception of autonomy’s proper value and attribution as well as the danger of a hidden paternalism are among the main objections against RRCC.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
To my best knowledge, the now common gatekeeping metaphor was coined by Faden and Beauchamp 1986, p.287ff.
- 2.
- 3.
There are several important ambiguities in the term ‘risk’, well-known from other fields of decision-making analysis: (1) risks can be understood and quantified either as the mere likelihood that some negative effect might occur, or else as a joint parameter (in standard decision theory: the mathematical product) of the probability and quality of possible negative effects. Moreover, risks can be taken (2) as gross or net, (3) subjective or objective, as well as (4) expected ex ante or realized ex post. For the principled purpose of this paper it seems acceptable to understand ‘risk’ as some non-negligible probability of some non-negligibly net-harmful consequences assessed from an intersubjective ex ante perspective – and to leave all the detail questions open.
- 4.
- 5.
Some authors insist that competence is a purely legal term: e.g. Ganzini et al. 2004, p.264, but common usage proves to the opposite.
- 6.
I use the term ‘intervention’ in a loose way, covering therapeutic, diagnostic, and preventive procedures, hospitalizations etc. Other patient decisions requiring competence may regard specific, often controversial interventions primarily asked for by patients such as elective abortions, assistance in suicide, or enhancement.
- 7.
Thus, in terms of absolute authority, patients’ decisional power is that of a veto power. Whenever there are several reasonable options patients are, moreover, authorized to choose among them. Granting respect for patients’ autonomy in this standard sense is clearly distinct from wish-fulfilling medicine – in contrast to some common suspicions.
- 8.
- 9.
- 10.
According to my understanding, the difference between a given consent’s real qualities and its assessment by legal and institutional policies corresponds to the difference between what Faden and Beauchamp (1986, p.277f.) have called informed consent (sense1) and (sense2). In any case, the gap between hypothetical ethical requirements for any single case of decision-making and actual policy requirements can account for some puzzling questions. They regard, e.g., issues of self-induced non-understanding, robust false beliefs, or imprudent decision-making by competent patients. In all such cases that I cannot here pursue any further, ethically legitimate policy might accept resulting decisions as if sufficiently autonomous and ‘informed’ although they do not fulfil the standard criteria.
- 11.
Communication of choice is sometimes listed as a necessary element of competence. Strictly speaking, this is not required for decision-making as such, but rather for its operationalization (think of a locked-in patient who might well come to a decision but might under unfortunate circumstances not be able to communicate it). However, in practically oriented lists communication is a standard item. Moreover, communication usually has an important role in the process of patient understanding.
- 12.
- 13.
To quote Louis Charland, bioethicist and philosopher of cognitive sciences: “The combined theoretical and practical nature of decisional capacity in the area of consent is probably one of the things that makes it so intellectually compelling to philosophers who write about it. But this is still largely uncultivated philosophical territory. One reason is the highly interdisciplinary and rapidly changing nature of the field. Clinical methods and tests to assess capacity are proliferating. The law is also increasingly being called upon to respond to these clinical developments. All of this makes for a very eclectic and challenging field of inquiry.” (Charland 2015, sec. 1).
- 14.
I do not here take issue with questions of the exact nature – gradual or binary, actual or dispositional – of each capability at stake.
- 15.
So, for instance, Buchanan and Brock (1989, p. 50): “An adequate standard of competence will focus primarily not on the conent of the patient’s decision but on the process of the reasoning that leads up to that decision.” Feinberg (1989, pp.106ff) has insisted on differentiating between a decision’s “rationality” in the procedural sense and its “reasonableness”, obviously without having been followed.
- 16.
Thus e.g. Culver and Gert (1990) write: “If one requires a patient to make use of his competence when making a decision, the one is no longer judging the competence of the person to decide, but the rationality of the decision made” (p.622; emphasis added).
- 17.
Compare for instance Hanna 2011. A plausible answer might refer to some surplus value of a policy that insists on the normative difference between impairment and imprudence, even if it cannot be justified in single cases.
- 18.
Tightrope walking as a comparative example for understanding competence has been introduced into the RRCC debate by Wilks (1997, p.419ff.). As others have consequently done, I will stick to it.
- 19.
Beauchamp seems to overlook this point when he equates “the specific competence to make a certain kind of decision – e.g., whether to cease a certain drug therapy” with “the capacity to make such choices in the circumstances” (Beauchamp 1991, p.61).
- 20.
This view is shared e.g. by Checkland 2001, p.36. Most notably and influentially since Drane’s pioneering article, Dan Brock and Allen Buchanan have at length defended RRCC (Buchanan and Brock, Deciding for Others, Chap. 1). In contrast, Tom Beauchamp and Jim Childress have in their common monograph Principles of Biomedical Ethics supported a fixed threshold from the first edition (1979) to the latest one (2019). Remarkably though, Beauchamp has, in his singly authored essay “Competence” (1992), defended RRCC. For a recent RRCC-approval in research consent see Bromwich and Rid 2015. For a recent example from the German-speaking literature see Hermann et al. 2016.
- 21.
- 22.
Epistemically this seems true even in light of a common asymmetry in consent versus refusal practice, where the former is taken to require substantial understanding of the relevant facts and prognoses whereas the latter goes without much ado.
- 23.
Compare Checkland 2001, p.41ff. on the complex role of second-order abilities in matters of competence.
- 24.
To my knowledge, in the RRCC literature this distinction has not been systematically pursued.
- 25.
This – somewhat self-imposing – expression is owed to Silver (2002, p.462ff.).
- 26.
See Sect. 10.2.2. above. Sometimes reference to values is made within the bundle of mental capacities, e.g. requiring “the ability […] to evaluate [treatment] consequences in view of one’s own values” (Hartogh 2016, p.71) – presupposing the possession of such values. Sometimes authenticity is introduced as an additional requirement outside (narrowly understood) competency, see (Quante 2011). Value conformity should not get misunderstood as nailing patients down to their past values: As has often been emphasized, it should also entail leeway for new, may be ‘courageous’ evaluations.
- 27.
This view, I take it, belongs to the framing theses of the AA-model of informed consent. Compare Beauchamp and Childress 2019, p.100ff.
- 28.
I find myself in some agreement with and owe much to ethicist Joseph Demarco (2002) who first drew my attention to this particular debate.
- 29.
Compare Demarco 2002, p.236ff.
- 30.
Systematically, Feinberg’s position falls under what Fateh-Moghadan and Gutmann have labeled the “endangerment”-variety of soft paternalism. They, too, rightly stress the importance of “proportionality” in justifying such policies and their inherent danger of hidden hard paternalism (Fateh-Moghadam and Gutmann 2014, p.392ff.).
- 31.
This is what Buchanan/Brock seem, however, to require from a non-paternalist position: compare Buchanan and Brock 1989, p.41ff.
- 32.
References
Alexander, Larry. 1996. The Moral Magic of Consent (II). Legal Theory 2 (3): 165–174.
Amelung, Knut. 1992. Über die Einwilligungsfähigkeit (Teil I). Zeitschrift für die gesamte Strafrechtswissenschaft 3: 525–558.
Beauchamp, Tom L. 1991. Competence. In Competency. A Study of Informal Competency Determinations in Primary Care, ed. Mary Ann Gardell Cutter and Earl E. Shelp, 49–77. Dordrecht: Springer.
Beauchamp, Tom L., and James F. Childress. 2019. Principles of Biomedical Ethics. Vol. 8. New York/Oxford: Oxford University Press.
Bromwich, Danielle, and Annette Rid. 2015. Can Informed Consent to Research Be Adapted to Risk? Journal of Medical Ethics 41 (7): 521–528.
Buchanan, Allen E., and Dan W. Brock. 1989. Deciding for Others: The Ethics of Surrogate Decision Making. Cambridge: Cambridge University Press.
Cale, Gita S. 1999. Continuing the Debate over Risk-Related Standards of Competence. Bioethics 13 (2): 131–148.
Charland, Louis C. 2015. Decision-Making Capacity. In The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta, https://plato.stanford.edu/archives/fall2015/entries/decision-capacity/.
Checkland, David. 2001. On Risk and Decisional Capacity. Journal of Medicine and Philosophy 26 (1): 35–59.
Culver, Charles M., and Bernard Gert. 1990. The Inadequacy of Incompetence. The Milbank Quarterly: 619–643.
DeMarco, Joseph P. 2002. Competence and Paternalism. Bioethics 16 (3): 231–245.
Drane, James F. 1985. The Many Faces of Competency. Hastings Center Report 15 (2): 17–21.
Dresser, Rebecca S. 1995. Dworkin on Dementia. Elegant Theory, Questionable Policy. Hastings Center Report 25 (6): 32–38.
Dworkin, Ronald. 1986. Autonomy and the Demented Self. The Milbank Quarterly 64 (Suppl. 2): 4–16.
Faden, Ruth R., and Tom L. Beauchamp. 1986. A History and Theory of Informed Consent. New York/Oxford: Oxford University Press.
Fateh-Moghadam, Bijan, and Thomas Gutmann. 2014. Governing [through] Autonomy. The Moral and Legal Limits of ‘Soft Paternalism’. Ethical Theory and Moral Practice 17 (3): 383–397.
Feinberg, Joel. 1989. Moral Limits of the Criminal Law: Harm to Self. New York/Oxford: Oxford University Press.
Ganzini, Linda, Ladislav Volicer, William A. Nelson, Ellen Fox, and Arthur R. Derse. 2004. Ten Myths about Decision-Making Capacity. Journal of the American Medical Directors Association 5 (4): 263–267.
Gaylin, Willard. 1982, April 1. The Competence of Children: No Longer All or None. Hastings Center Report 12 (2): 33–38. https://doi.org/10.2307/3561805.
Gigerenzer, Gerd, Wolfgang Gaissmaier, Elke Kurz-Milcke, Lisa M. Schwartz, and Steven Woloshin. 2007. Helping Doctors and Patients Make Sense of Health Statistics. Psychological Science in the Public Interest 8 (2): 53–96.
Hanna, Jason. 2011. Paternalism and Impairment. Social Theory and Practice 37 (3): 434–460.
Hartogh, Govert den. 2016. Do We Need a Threshold Conception of Competence? Medicine, Health Care and Philosophy 19: 71–83. https://doi.org/10.1007/s11019-015-9646-5.
Hermann, Helena, Manuel Trachsel, and Nikola Biller-Andorno. 2016. Decision-Making Capacity: Inherent Ability or Ethical Judgment? Ethik in der Medizin 28 (2): 107–120
Jox, Ralf J., et al. 2012. Surrogate Decision Making for Patients with End-Stage Dementia. International Journal of Geriatric Psychiatry 27 (10): 1045–1052.
Macklin, Ruth. 1987. Mortal Choices: Ethical Dilemmas in Modern Medicine. Boston: Houghton Mifflin.
Manson, Neil C., and Onora O’Neill. 2007. Rethinking Informed Consent in Bioethics. Cambridge: Cambridge University Press.
Miller, Franklin G., and Alan Wertheimer. 2011. The Fair Transaction Model of Informed Consent: An Alternative to Autonomous Authorization. Kennedy Institute of Ethics Journal 21 (3): 201–218.
Quante, Michael. 2011. In Defence of Personal Autonomy. Journal of Medical Ethics 37 (10): 597–600.
Roth, Loren H., Alan Meisel, and Charles W. Lidz. 1977. Tests of Competency to Consent to Treatment. The American Journal of Psychiatry 134 (3): 279–284.
Schoene-Seifert, Bettina, Anna Lena Uerpmann, J. Jochaim Gerss, and David Herr. 2016. Advance (Meta-) Directives for Patients with Dementia who Appear Content: Learning from a Nationwide Survey. Journal of the American Medical Directors Association 17 (4): 294–299.
Vandeveer, Donald. 2014. Paternalistic Intervention: The Moral Bounds on Benevolence. Princeton: Princeton University Press. https://doi.org/10.1515/9781400854066.
Silver, Mitchell. 2002. Reflections On Determining Competency. Bioethics 16 (5): 455–468.
Wicclair, Mark R. 1991. Patient Decision-Making Capacity and Risk. Bioethics 5 (2): 91–104.
———. 1999. The Continuing Debate over Risk-Related Standards of Competence. Bioethics 13 (2): 149–153.
Wilks, Ian. 1997. The Debate over Risk-Related Standards of Competence. Bioethics 11 (5): 413–426.
———. 1999. Asymmetrical Competence. Bioethics 13 (2): 154–159.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2022 The Author(s), under exclusive license to Springer Nature Switzerland AG
About this chapter
Cite this chapter
Schoene-Seifert, B. (2022). Patients’ Decision-Making Competence: Discontents with a Risk-Relative Conception. In: Childress, J.F., Quante, M. (eds) Thick (Concepts of) Autonomy. Philosophical Studies Series, vol 146. Springer, Cham. https://doi.org/10.1007/978-3-030-80991-1_10
Download citation
DOI: https://doi.org/10.1007/978-3-030-80991-1_10
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-80990-4
Online ISBN: 978-3-030-80991-1
eBook Packages: Religion and PhilosophyPhilosophy and Religion (R0)