In the preceding section, I argued that in order for competence determinations to distribute decisional authority in such a way as to protect an individual’s ability to live their own lives in accordance with their own values, they must ground Complete Rights to Non-Interference (RCI + RTBI + RPBI). In virtue of the role competence assessments play, whether or not an individual is deemed competent has substantial normative implications. As was seen in Voluntary Amputation, failing to demonstrate one’s competence can lead to PBI and more CI which, I argued above, substantially impair an individual’s ability to live their own lives. In virtue of the contribution a demonstration of competence makes to people’s ability to pursue their own life plans, it is vital to provide an account of how an individual demonstrates competence in order to see whether or not the account of competence presented can take on autonomy’s anti-paternalistic role. If the account of competence fails to distribute decisional authority to all those who we (pre-theoretically) believe should be entitled to make their own healthcare decisions, it will fail as a substitute for talk of autonomy which, in virtue of its wider theoretical baggage, leads to extensionally incorrect distributions of decisional authority.
In this section, I argue for a risk-sensitive account of competence as a criteria for distributing decisional authority. On a risk sensitive account of competence an individual demonstrates their competence by exercising their agential capacities to the extent necessary to meet a threshold determined by the riskiness of the decision. The three capacities the individual must exercise are: (i) the capacity to acquire knowledge, (ii) the capacity for instrumental rationality, and (iii) the capacity to form and revise a life plan.
Before turning to specifying how risk influences the threshold of capacity an individual has to meet to demonstrate competence I will, firstly, explain why the exercise of capacities (i) through (iii) is necessary and sufficient for an individual to be considered competent to consent.
Knowledge, Rationality and a Life Plan
In order for individuals to be competent to pursue a course of action, they must possess the ability to acquire and understand factual knowledge about the world. This, in turn, will require: the capacity to perceive the world in a way which allows for new evidence to become salient (Savulescu and Momeyer 1997), memory, the capacity to represent the world in the form of beliefs and, finally, the ability to contrast beliefs with reality to ascertain whether they are true.
The capacity to perceive the world in some way is a sensible component of the capacity to acquire knowledge as, without it, the only knowledge we would have access to would be either a priori, or the result of introspection. In order for an individual to be deemed competent to make the types of choices involved in clinical care they require knowledge of the world, not just a priori knowledge. Memory is also important for competence in virtue of the fact that medical decisions extend over time. Without the capacity to retain the information required, we would be unable to put our life plans into effect. With regard to the capacity to form beliefs and contrast them to the world, these are required due to the fact knowledge consists of, at least, justified true belief (Gettier 1963). Without the capacity to represent the sense data we receive and the inferences we draw from it as beliefs, we would be unable to meet one of the necessary conditions of knowledge: the possession of beliefs about the world. In order to acquire knowledge, we must also possess the ability to contrast these beliefs with reality in order to be justified in believing them (using our sensory capacities, memory and reason). In as far as justification has something to do with a relationship between the belief and the world, the ability to contrast beliefs to the world is necessary for the capacity to acquire knowledge. Exactly which mental faculties are involved in producing reliable methods of contrasting beliefs to the world (i.e., the question of when we are justified in believing propositions) is a question which goes beyond the concern of this paper. The reader is, hence, invited to use their favoured theory of justification to answer these questions. Whilst the capacity to acquire factual knowledge seems necessary for an individual to be deemed competent, it is not sufficient. Without the capacities for instrumental rationality and the capacity to form and revise a life plan, we lack a set of ends to pursue and the ability to choose means in light of them. Unless an individual can demonstrate the exercise of these two further capacities, they cannot acquire Complete Rights to Non-Interference (RCI + RTBI + RPBI).
Let us now turn to the second capacity, the capacity for instrumental rationality. This capacity, like the capacity to acquire knowledge, is necessary for an individual to be deemed competent. Without the ability to use the information acquired in decision-making to pursue one’s ends, the capacity for knowledge does not give us the means necessary for us to be able to live our own lives in accordance with our own values. Instrumental rationality involves the ability to compare the representations we make of courses of action in light of our ends (Berg et al. 1996; Appelbaum 2007). The capacity for instrumental rationality, hence, requires the ability to join factual information with questions of value in order to arrive at conclusions about what we have reason to do. As the demonstration of competence grounds Complete Rights to Non-Interference (RCI + RTBI + RPBI) as a means of providing us with the space to pursue our life plans, in order to be deemed competent an individual must be able to exercise the capacity to reason instrumentally. If the capacity for instrumental rationality is not taken as an element of competence, there would not be a connection between the rights demonstrating competence grounds and the ability to pursue one’s life plan that the rights protect. The exercise of the capacity for instrumental rationality is, along with the capacity to acquire factual knowledge, necessary for an individual to be deemed competent and, hence, acquire Complete Rights to Non-Interference (RCI + RTBI + RPBI). These two capacities, whilst both necessary, are not jointly sufficient.
The third capacity which constitutes competence is the capacity to form and revise a life plan. Without a life plan to provide the ends, instrumental rationality and the capacity to acquire knowledge would be unable to provide guidance regarding which course of action to take. Without a life plan, people would be unable to evaluate states of the world and (using their instrumental rationality and knowledge) choose in light of these evaluations. By organising our diverse values into more of less coherent wholes (Fried 1970, 19), life plans provide us with the evaluative framework necessary to rank alternative courses of action, which is a precondition to choosing in such a way as to pursue our conceptions of the good. The values life plans organise are diverse in a number of ways. Values vary in their generality (Raz 1986, 293) and in their fundamentalness (Noggle 1997, 318). General values permeate more aspects of our lives than their more specific counterparts. Honesty, for example, could (and arguably should) influence our decisions in all areas of our life, whilst chastity may only affect our sex lives (and/or religious lives if our particular religion proscribes certain sexual practices, such as sex outside marriage). Fundamental values come closer to the core of who we are than superficial values and are those we are less inclined to give up. Further along the scale of fundamental-ness are “grounding projects”. Our “grounding projects” are those values which are so fundamental there may be no reason to carry on living in their absence (Williams 1976, 209).
The diversity of values requires a system for ranking these and determining “the magnitudes of risk which he will accept for his various ends at various times in his life” (Fried 1970, 95; Childress 1982, 191). Life plans, hence, govern the trade-offs between goods which cannot be pursued in parallel (Dworkin 2006, 109). When faced with a choice which requires a trade-off, having an organised system of values enables us to consider how factual information that informs choices is relevant to our lives by asking, for example, whether a particular sacrifice of one value is warranted in virtue of its contribution to furthering another and whether the choice violates one’s “ground projects”.
The principles which rank alternatives and stipulate how much risk to one goal we are willing to accept for another are often hard to express propositionally (Raz 1986, 294) and, for that reason, often remain implicit or inchoate (Fried 1970, 30). In as far as these principles remain inchoate they are vulnerable to two types of problem: incompleteness and inconsistency. Situations may present themselves which call for a ranking of values or states of affairs which we have never considered or even for the valuing of something which we had not considered valuing before. These tensions provide us with opportunities to extend our partially inchoate life plan, making it more comprehensive. Novel situations can also provide evidence of inconsistency in one’s life plan. When our partially complete ordering of values and ends appears to recommend two incompatible courses of action, we need to modify our life plans to reduce this inconsistency. These two problems generated by the inchoate nature of our life plans make the capacity to revise, as well as to form, life plans crucial to whether an individual is competent.
Competence, hence, is determined by the extent to which an individual exercises three capacities: (i) the capacity to acquire knowledge, (ii) the capacity for instrumental rationality, and (iii) the capacity to form and revise a life plan. These three capacities, I have argued, are individually necessary and jointly sufficient for a person to be competent. Whether or not an individual is competent, I stated above, was a matter of whether or not the individual could meet a threshold. The use of thresholds is necessary for scalar properties to yield binary determinations. As the exercise of the three capacities which constitute competence is a matter of degree; in order for a demonstration of competence to distribute decisional authority in a binary fashion, we need to set a threshold which, once met, would entitle the individual to Complete Rights to Non-Interference (RCI + RTBI + RPBI). In virtue of the significance of meeting the threshold that grounds RCI + RTBI + RPBI, the open question at this point is: How do we set the threshold?
Risk and Thresholds
In this section, I will argue for a risk-sensitive approach to competence (Cale 1999; Brock 1991; Skene 1991) as a means of setting the threshold of the three capacities which constitute competence which the individual must meet to ground their Complete Rights to Non-Interference (RCI + RTBI + RPBI). The basic claim of a risk-sensitive approach to competence is the following: the riskier the decision, the greater the extent to which an individual must demonstrate the exercise of the capacities which jointly constitute competence in order to acquire a Complete Right to Non-Interference (RCI + RTBI + RPBI). On this account, it is easier to demonstrate competence for non-risky courses of action than it is for risky ones. As the demonstration of competence determines whether we possess a Complete Right to Non-Interference, it will be harder to pursue risky courses of action without being interfered with than it will be to pursue non-risky ones. In light of the vital role Complete Rights to Non-Interference play in enabling us to pursue our plans, any measure which makes it harder for people to acquire them stands in need of justification. The question of how the riskiness of a decision is determined is, hence, central to the plausibility of the account presented. If we determine risk in the wrong way, we may end up denying Complete Rights to Non-Interference to individuals who should, intuitively, be entitled to live their own lives in accordance with their own values.
In this section, I will argue that the extent to which a proposed activity is risky for an individual should be determined using the individual’s own values (Buchanan and Brock 1986). On a subjective account of risk, the riskiness of a decision is determined by assessing the probability of an outcome happening versus the magnitude of the harm. The magnitude of the harm is to be determined by the extent to which the outcome would negatively impact a person’s life plans and their ability to pursue them. This is, I believe, required if competence is to play the anti-paternalist role currently attributed to autonomy. The role of autonomy in a liberal bioethics, I argued above, is to protect an individual’s ability to live their own lives in accordance with their own values. As individual’s life plans contain ranking principles which mark out some goods as being more important than others (Fried 1970, 19; Raz 1986, 292) and set the magnitude of risk to one goal one would be willing to take in order to complete another (Fried 1970, 95, 177; Childress 1982, 191), respecting an individual’s ability to pursue their own life requires setting the threshold of competence according to the individual’s own values. If, instead of using a subjective approach to risk, we used an objective determination of risk (medical best interests, for example), we would fail to respect an individual’s ability to live their life plans in accordance with their own values. As the riskiness of the decision sets the threshold the individual must meet to acquire Complete Rights to Non-Interference (RCI + RTBI + RPBI), using an objective criterion of risk could lead to situations in which individuals are found to be incompetent (with its corresponding loss of decision-making authority) on the basis of the threshold being raised in response to a factor the individual does not consider to be risky. This, I believe, fails to respect an individual’s ability to live their lives in accordance with their values.
With a sketch of the theory in hand, let us return to some modified versions of the cases involving voluntary amputation presented above to see whether the account presented here is plausible.
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Magician A magician consults his surgeon and asks for them to amputate his hand, stating he no longer wants it to be a part of him. Presented with such an unusual request, the surgeon refers the patient to a psychiatrist who interviews the magician to determine whether he is competent (CI + TBI). In order to do so, the psychiatrist first inquires into the magician’s values and plans. The psychiatrist discovers the magician often does card tricks during his performances and, although currently pursuing an alternative career as a barista, still has dreams of becoming a full time magician. During the course of the interview, it becomes apparent the magician is uncomfortable accepting help from others, even with tasks he struggles with, such as filling out his taxes. This behaviour coheres with his expressed desires to be independent and not the object of charity. It is deemed by the clinical team that, in light of a hand amputation being hard to make compatible with the magician’s values and desires, the procedure is risky for the magician. A suitably high threshold of competence is then established. Having decided to go ahead anyway, the magician’s competence is assessed. Upon failing to meet the high threshold, the individual is deemed incompetent and the operation fails to go ahead.
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Leg Amputation Sandra has long wanted a surgical amputation of her leg and, hence, arranges an appointment with a surgeon. Presented with such an unusual request, the surgeon refers the patient to a psychiatrist who interviews Sandra to determine whether she is competent (CI + TBI). In order to do so, the psychiatrist first inquires into Sandra’s values and discovers she has long been a wannabe (i.e., an individual who desires a voluntary amputation). Furthermore, she has experimented for periods of time with restricting the movement of her leg, using crutches and wheelchairs to move around the house. Although the pursuit of other activities she values is made more cumbersome with the walking aids, she is willing to pay these costs for satisfying her persistent desire for a voluntary below the knee amputation if a prosthesis could not be fitted. Following this interview, the voluntary amputation of Sandra’s leg is not deemed particularly risky to Sandra and a suitably low threshold (which the magician could have met) is established. Deciding to go ahead with the amputation, Sandra’s competence is assessed, she is deemed competent and the surgeon proceeds with the amputation.
An important implication of the account being presented here is the fact that a risk-sensitive account of competence entitles people to pursue actions which are compatible with their life plans relatively free from interference. Actions which are not compatible with the individual’s life plan are, on a risk-sensitive account, correspondingly hard to pursue. In Magician, the protagonist was deemed incompetent to pursue his plan in virtue of the fact that the procedure was risky for him. Whereas in Leg Amputation, Sandra was entitled to pursue her proposed plan of action by meeting a low threshold, the magician was precluded from engaging in qualitatively similar actions on the basis of his inability to meet a high threshold. It seems, then, that the magician’s failure to acquire Complete Rights to Non-Interference is caused by the fact competence has been taken to be risk-sensitive. It could be objected that, under an alternative account of competence which didn’t make reference to the riskiness of the decision, the magician would have been entitled to pursue his amputation free from interference by others. This objection can be interpreted as a demand for justification for raising the threshold. Why, then, is it the case that Sandra should have decision-making authority to pursue her voluntary amputation whereas the magician should not?
The reason Sandra should be entitled to have a voluntary amputation is due to the fact that this option is an important element of her life plan. Not allowing the individual to pursue these choices would unjustifiably limit her ability to live her life in accordance with her own values. The importance of allowing individuals to live their own lives does not disappear when the choices they make appear to be harmful or strange. Complete Rights to Non-Interference (RCI + RTBI + RPBI) protect an individual’s ability to live their lives regardless of what others perceive to be the “correct” choice. The right to non-interference grants the individual a sphere of jurisdiction in which “we let that person go his own way, whether we approve of it or not” (Neumman 2000, 294). This, I believe, is in keeping with the role autonomy should play in a liberal bioethics. The respect we have for autonomy in clinical encounters is not a form of appraisal respect, but of recognition respect. Appraisal respect, unlike recognition respect, is a response to excellence (Hill 2000) and, hence, requires pro-attitudes towards the object of respect. Recognition respect, on the other hand, is a matter of giving the object of respect appropriate weight in one’s deliberations and acting accordingly (Darwall 1977; Dillon 2016). In order to give people’s capacities appropriate weight, we must not preclude them from pursuing their projects. Importantly, this requirement holds independently of what we think of the content of the individual’s life plan. If competence is to take the role of autonomy in a liberal bioethics, it too must ground rights independently of whether or not others approve of the life plan they will be used to pursue. Having shown that Sandra should be entitled to pursue her life plan, let us now turn to see why it is appropriate to not give Complete Rights to Non-Interference (RCI + RTBI + RPBI) to the magician.
Not giving complete rights to non-interference to the magician is justified in virtue of the fact that raising the threshold of competence in the way required by the risk-sensitive standard does not preclude the magician from living out his own life in accordance with his own values. In as far as the threshold has been raised using the individual’s own values, not granting the individual Complete Rights to Non-Interference (RCI + RTBI + RPBI) if he decides to act against his expressed values is, if anything, more akin to requiring him to live in accordance with his values rather than prohibiting him from living his life in accordance with them. Raising the threshold in this way, hence, is compatible with the role autonomy should play in a liberal bio-ethics, i.e., protecting people’s abilities to live their own lives in accordance with their own values.
It could be objected, however, that requiring people live their lives in accordance with their own values is also problematic in virtue of the fact it limits the extent to which an individual is free to choose which course of action to pursue. In light of the common association between respect for autonomy and allowing individuals to choose which course of action they want to take (Taylor 2009, 83), requiring an individual live their own life in accordance with their own values could be interpreted as incompatible with respect for autonomy and an infringement of the “freedom of each person to order her life and constitute her self in her own way” (Noggle 1997, 509).
This interpretation, however, should be resisted. Although respect for autonomy normally requires a broad range of choices, it is not the same as merely providing negative space in which people can act (Taylor 2009, 21). Autonomy requires more than that. If autonomy and negative liberty could be equated, paradigmatically non-autonomous agents (e.g., wantons)Footnote 3 could be deemed to be autonomous, as nothing precludes them from possessing negative liberty.
Not being able to equate negative liberty and autonomy, it is no longer obvious that raising the threshold of competence in light of the individual’s values is incompatible with respect for autonomy. In as far as autonomy includes something more than mere negative liberty, it is not unreasonable to suppose that protecting an individual’s ability to live one’s life in accordance with their own values could require not allowing people to act against their expressed values without demonstrating the exercise of the capacities to (i) acquire knowledge, (ii) reason instrumentally, and (iii) form and revise a life plan to the extent necessary to meet a high threshold. This is due to the fact that, “given a person’s particular motivational set”, an individual may be better able to exercise their autonomy were they “to have a set of options available to her that had a smaller number of elements than some alternative-sets” (Taylor 2009, 94). A risk sensitive threshold of competence, insofar as it uses the individuals own values, is compatible with respect for autonomy even if it does, in cases like Magician, preclude certain individuals from pursuing courses of action which run counter to their expressed values. This is due to the fact that the reason why the threshold of competence is raised is particular to each individual and, hence, is a response to their ability to live their lives in accordance with their own values.
In the section entitled “Knowledge, Rationality and a Life Plan”, I argued that competence is demonstrated by meeting a threshold of the three capacities: (i) the capacity to acquire factual knowledge, (ii) the capacity for instrumental rationality, and (iii) the capacity to form and revise a life plan. In “Risk and Thresholds”, I argued that protecting an individual’s ability to live their own lives in accordance with their own values required the use of a subjective criterion of risk, where the riskiness of the decision is determined by the extent to which the proposed course of action interacts negatively with the individual’s own values. With a sketch of the account in hand, I turned to discussing two cases and argued that, even when the risk-sensitive account of competence raises the threshold an individual has to meet in such a way as to preclude them from carrying out a particular action, this is in line with what is required by respect for autonomy as respect for autonomy is compatible with limiting the option sets of particular people.