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Welcome, everyone, to the second St. Cross special ethics seminar for the term.

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Today, we've got Jennifer Hawkins. She is associate research professor in the Department of Philosophy at Duke and a cool

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faculty member of the Trent Centre for Bioethics at the Duke University School of Medicine.

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Her philosophical research interests focus on well-being, happiness.

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There is of emotion and practical reason and notions of self and the interests of the medical ethics focussed on disability,

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the care of patients with dementia, assessment of decision making capacity, psychiatric illness, and the nature of suffering.

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And before just before we get started, Jenny, just a quick note to everyone about the way we'll handle the discussion.

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So Jen is going to do her talk, then we'll basically have at least half the time for discussion, give or take.

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We prefer if you kind of raise your virtual hand and then I can call on you to talk.

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You'll be unmuted and you can ask your question directly.

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But it's also possible if you wanted to put it in a Q&A or the chat, and I'll try and take up any questions you put there.

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But it's easier for all of us if you just ask your question first and if you can do it.

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That's the second half. So the first half will hand over to Jenny for her talk effect.

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Values and problems, assessing decision making capacity. Jenny.

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All right. Can people hear you hear me right? Perfectly OK.

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So thank you. Thank you for having me. So I've been thinking about this for quite some time.

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I want to start with a little point about terminology in this talk.

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I treat decision making capacity, which I often just shortened to capacity and mental competence,

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which I shorten to competence as basically two ways of talking about the same thing.

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And I am well aware that not everyone treats these as strictly equivalent.

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And if anyone wants to talk about it afterwards, I'm happy to.

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But the important thing for now is just that you who are listening to this know that that's how I'm using the terms.

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And so you won't be confused by anything I say. All right.

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That was that was excellent. All right. I'll get into the string and get here.

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All right. So as I am sure you all know, informed consent, whether it's for treatment or research,

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presupposes that the individual giving consent has decision making capacity or is mentally competent and relatively speaking.

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And I do mean relatively philosophers have paid little attention to this concept,

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which is a bit surprising, I think, given that the moral stakes here are so high.

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I mean, obviously,

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the way that we conceptualise what capacity is and then how we go on from that to assess it has huge consequences for people's lives.

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If I'm deemed to have the capacity to make a particular medical decision, then in most settings at least,

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my decision will be honoured regardless of what anyone else thinks about it.

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But if I'm not deemed to have capacity, I won't get to choose.

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Informed consent will be obtained from someone else with the authority to decide for me.

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So a lot turns on this idea. Right.

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So here what I want to do in this talk is basically three things.

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First, I want to familiarise you with a problem that I see,

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a limitation that I think exists in the current ways of thinking about decision making capacity.

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Then I'm going to argue for a particular diagnosis of the problem.

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And that's a kind of stand alone part. Like you might think I'm right about the diagnosis, but I disagree with.

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But I have to say later, after the diagnosis, I'm then going to try and sketch a possible solution.

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All right. So that's where we're headed.

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Sir, the realm of capacity assessment is complex, and there's still quite a bit of variability in how capacity is assessed in different places.

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Nonetheless, there is one model of decision making capacity. It's known as the Four Abilities model developed by Thomas Grusovin and Paul Appelbaum.

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And it has clearly emerged as the dominant mode of thinking about this, even though it's not the only one.

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It's now widely used throughout the US. And this might be surprising.

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We'll come back to this. It's used to some extent in the UK as well.

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At any rate, in addition to developing the model, Crista Anne Applebaum also developed an empirical instrument that was designed

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to assess the degree to which a particular patient has these four abilities.

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It's called the Mac Cat Tea, which stands for MacArthur Competence Assessment Tool Treatment.

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There's also an R version for research.

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Nonetheless, there is and there has been for some time a small group of dissenting voices claiming that this model is inadequate.

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And I count myself as someone who's recently joined the ranks of the dissenters.

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Now, the Four Abilities model focuses on certain basic cognitive abilities that are considered necessary for a person to have capacity.

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And I'm happy to allow that possessing these cognitive abilities to the right degree is indeed necessary for capacity.

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But I'm equally certain that possessing them is not in every case sufficient.

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Right.

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I think there are a number of patients who intuitively should not count as having Decision-Making capacity, but who nonetheless on this model do.

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All right. So before presenting the four abilities model in detail,

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I think it's important to highlight some of the background ethical constraints that have shaped the thinking and gotten us to where we are.

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The first ethical constraint, I think, of as value neutrality.

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So one of the main aims, I think, of the ethical aims of modern medicine has been to ensure that competent patients are free to.

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In accordance with their own values. Even if those values differ from those of their doctor or family or other folks.

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And to help guarantee this freedom.

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The following principle was adopted very early on as a sort of foundational principle of capacity assessment and the idea

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that capacity should never be determined simply on the basis of what the patient wants or chooses or professes to value.

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No matter how unusual that might be, one way to think about it is that since even a choice like death could be a rational choice in some contexts,

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for some people, we can't say a person lacks capacity simply because they choose death or something that will lead to it.

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Instead, we should distinguish competent from incompetent choices by looking at the process that led up to the choice.

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Now, there's a second important constraint that I think is diagnostic neutrality.

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So just as capacity is not supposed to be determined simply by what the patient wants,

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neither is it to be supposed to be determined simply on the basis of a diagnosis.

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And this is particularly important for those with mental illness or some degree of cognitive deficit,

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since historically those individuals were generally just thought to have no ability to make any decisions at all.

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The correct framework is much more flexible,

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and it allows that some people with mental illnesses and with cognitive deficits may have capacity, even if some others like it.

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Indeed, a particular person might have the capacity to make this decision, but not that one.

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But at any rate. Let's see.

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But in any given case, what you really have to be showing, according to the new framework, is not whether the person is mentally ill,

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but whether there is something, whatever it is, that is getting in the way of the processes that are important to decision making.

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So that's how people think about that. All right.

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The third constraint, I think, of as inclusive inclusiveness or as I put it here, inclusive city.

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And this one doesn't get talked about as much, but I think it's just as important.

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And I think it has really shaped the way debates about capacity have gone.

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So in building a model for assessing capacity.

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We have to be careful not to build in so much that too many people turn out to lack capacity.

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Ordinarily, we assume that ordinary adult human beings are competent and we need this to be true not just contingently,

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but as necessarily as part of the framework for ethical reasons.

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And you can see this if you think about the fact that police least one way of thinking about it,

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the whole point of the patients rights movement of the 60s,

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70s and 80s was to ensure that most people are allowed to be involved in their own medical decision making.

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So that means that from the very beginning, the goal has always been to minimise interference to the extent that we can,

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and that that translates into ensuring that most people count as competent.

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Most of the time now, it does mean that part of accepting this idea means that we have to accept that even those

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who legitimately are declared to be competent are not in any sense perfect decision makers,

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right? They can and they frequently do make mistakes, but nonetheless, they're competent.

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All right. Now, seems to me that one reason this for abilities model has become so popular and

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is so widely adopted is that it fits very well with all of these constraints.

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Right. It's process oriented. It makes no reference to the patient's values or diagnosis.

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It's minimalist interpretation of its own cognitive standards is compatible with inclusive city.

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Right. So I think that's some you know, why we why has taken hold now.

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So what is this four abilities model? So at the top of the slide, you'll see the ones that Grasso and Appelbaum put forward.

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They're the ability to evidence a choice, the ability to understand, the ability to appreciate and the ability to reason.

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Now, as many of you know, there's a slightly different list that you'd find in the UK Mental Health Act.

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If that one asks us to think about the ability to understand, the ability to retain the information, to use it, to weigh it and communicate a choice.

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But it is significant. And again, we can talk more about this later.

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But a number of people have argued that despite the differences in labels, the two systems are basically equivalent.

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There are slightly different labels for the same underlying abilities and therefore you can treat them as the same at any rate.

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That explains why some people use the four abilities model here.

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All right. At any rate, back to the way Grasso and Appelbaum set it up, just you kind of know what they're about.

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The first ability they list, the ability to evidence a choice is the least interesting one.

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It's just put there to remind clinicians that no matter what other capacities a patient may have,

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a patient must be able to clearly communicate that decision.

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And if other people are going to give it authority and honour it.

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But that's not really relevant to our discussion. So I'm not going to come back to that.

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The ability to understand the second one is central, of course.

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It requires that the patient be able to grasp all the facts relevant to her decision, her situation and the decisions she has to make.

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And if it's in question, then it's usually tested by talking with the patient about the decisions she faces,

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giving her information and perhaps asking her to explain things back to the

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interviewer to make sure she's not just parroting what the interviewer said.

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The third ability, the ability to appreciate is not exactly what it sounds like, and it can often be confusing to people.

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It requires, in addition to a grasp of information, that a person also believes that the information is true of her.

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So it's relevant. You might think. Does that add or do we need that to be added?

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Well, it is relevant since there are at least some cases that arise where patients are able to grasp what is being said.

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They understand it fully, but they refuse to believe that it's true or that it's true of them.

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Right. So an example would be extreme example,

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but humorous to some degree would be a patient with ICU psychosis who grasps that her doctors are telling her she's seriously ill,

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that she really shouldn't leave the ICU, but who internally believes she's just fine and who thinks that these people who

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claim to be her doctors are really secret agents who are plotting her death?

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That's pretty extreme, but it's based on a real case. If a patient fails to believe the medical facts apply to her, and if, as in this case,

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the failure is based on delusion, then she lacks Decision-Making capacity.

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And finally, there's the ability to reason. And this is generally interpreted in a very minimal way.

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It's the ability to consider several different possible outcomes to relate these to your values and concerns and weigh them accordingly.

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All right. So that's the framework that's been so powerful. What's wrong with it?

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I think we can bring it out in a few cases. So consider the first case, and this one involves strong emotions.

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Donna is a woman in her 50s. She has type one diabetes that has sometimes given her problems.

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Yet despite her illness, she very much has enjoyed her life. She has an interesting career as an artist.

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She's very physically active and she has a number of close friends.

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Suddenly, her condition deteriorates rather quickly and she learns that she will have to have an above the knee leg amputation.

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This is tough news to get. She responds pretty well to it.

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She appears to accept it. She sets about planning for the changes it will make in her life.

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Her friends report that she seems a bit and she comes willingly to the hospital for her surgery.

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However, immediately after the surgery, she informs her care team that she wants no further treatment except pain relief.

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She's quite clear about this and she's clear that this includes post-operative medications,

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that even if she should develop post surgical infection, she wants no antibiotics.

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She's very clear nothing except pain. And they're really puzzled by her change in attitude and the forcefulness of her demands.

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So her doctor calls for psychiatric console.

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The side president who comes to interview Donna, discovers after some probing that something indeed has happened.

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Donna's husband visited her in the hospital and told her he was leaving her for someone else,

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that he would be moving out of their home while she was recovering in hospital.

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And this apparently was a complete shock to. And it sheds new light on her treatment refusals.

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She's no doubt filled with grief and despair and confused.

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But our question is, does she have the capacity right now to make such a consequential decision?

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She's assessed by the same resident according to the four abilities model, and she's found to have capacity.

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Now, consider a different kind of case.

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Some of you may be familiar with this because it was partly inspired by some research that I know some of you are quite familiar with.

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Consider a young woman in her 20s that I called Tess. Tess has anorexia nervosa.

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And although she's been stable for a while, she's now started losing weight again, bringing her two extremely dangerous weight levels.

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She's very likely to die if she doesn't go into hospital and allow herself to be fed.

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But she refuses, saying she knows she has an illness.

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She knows she's incredibly thin. She knows she's risking death.

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But as she tells us, she would rather die than put on weight. What we want to know is she has the capacity to make such a decision right now.

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Well, interestingly, according to the Mac cat, tea and personal interviews, looking for these four abilities, it seems that she does.

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All right. So it's cases like these that raised concerns about capacity assessment.

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Many people, including myself,

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have the strong intuition that neither of these women are currently able to make the kind of decisions they're making in the first case.

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Overwhelming emotions seem to have completely altered Donna's outlook on her life almost overnight.

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But presumably that is temporary, though we don't know how long it will take her to recover.

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But recall our earlier constraints. We can't just say she lacks capacity because strong emotion is shaping her decision.

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After all, a broad appeal to strong emotion making that a criterion of capacity, it would rule too many people incompetent.

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Moreover, emotions aren't always bad forces. They play a role in many of our decisions, including many of our good ones.

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Could we instead appeal to the fact, which is probably true, that she's depressed or that she's experiencing emotional trauma?

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Well, that might be true of her, but no, we shouldn't appeal to that, at least if what we want is to avoid appeals to diagnosis.

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Not all people with depression or in from experiencing much from from lack capacity or now consider tests here.

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Emotions are less central. The real stumbling block here is her claim that she simply prefers to die rather than gain weight.

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She's telling us, in effect, that she values thinness more than life itself.

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But as we saw, we shouldn't rule someone incompetent on the basis of unusual values.

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That appears to violate value neutrality. Nor can we simply appeal to the anorexia because that would violate the commitment to diagnosis neutrality.

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Presumably not all patients with anorexia lack capacity.

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Presumably, even tennis has the capacity to make many other decisions.

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All right. So that's a problem.

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I'm not going to talk about reconceptualizing, what it is we're doing with capacity when we're trying to assess capacity.

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When I think about the way the current framework developed,

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I don't find it really all that surprising that it can't capture all of the cases that it really should.

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It was intentionally setup to focus on process without reference to outcomes or the situation and the process.

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And to the extent that it's assessed as assessed relative to some momentary given preference of the subject.

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But in ordinary life, we sometimes, perhaps even often judge the goodness or badness of decision making in a different way.

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We look to the general type of goal or end that decision making.

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In that context, has we looked to see how well the decision maker has done relative to that assumed goal and might not make a lot of sense.

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So let me give you a little example.

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Jill is a manager and she's trying to decide how best to handle a conflict that's arisen amongst her employees as a manager.

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It's her responsibility both to ensure productivity and look after her employees well-being.

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So her goal is to find some way of appeasing the various individuals involved, if she can.

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And to return the group to harmony. Within the constraints imposed by her situation,

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she searches for a solution that she can justify to them as fair and which

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hopefully will satisfy enough people to restore group goodwill and productivity.

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Now, for our purposes, my point is simply this the goodness or badness of Jill's decision making process is most

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naturally assessed relative to the general type of goal appropriate in the setting,

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the goal of managing well. When we discuss decision making, it's also worth noting we can do so objectively or subjectively assess it.

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So assume there's some concrete things that Jill could do to return Harmony to her group.

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If we assess the decision objectively, then we assess it in terms of whether or not she reached that goal and reached it in the right way.

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Her decision is objectively good. If in virtue of good thinking, she hits on one of the better managerial solutions available.

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Normally, however, I think we at least if we're interested in decision making as opposed to what is finally concluded.

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We assess that subjectively.

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And this is because it's always possible that there are things relevant to a decision that an individual decision maker doesn't know.

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And probably in some cases can't reasonably be expected to know.

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Because of this, we typically assess the goodness or badness of decision making by considering whether the decision maker knew what she

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reasonably ought to have known and then whether she used that knowledge as well as possible in pursuit of the appropriate goal.

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So from now on, I'll just assume we're talking about subject of decision making.

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OK, so how could this possibly relate? You might think, to medical decision making?

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Well, first, as illustrated above, I think that in order to really assess whether someone is able to make a particular decision,

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you have to have a prior sense of what the general goal of that type of decision making is.

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Now, Anderson,

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we're interested in understanding whether a person has the abilities that she needs in order to do well enough at the task of decision making.

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We're not asking people to be perfect. Right. But still even to say what?

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Well, enough is and identify the abilities needed to make decisions that are good enough.

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We need an account of the type of goal in order to give us a sense.

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Of what good medical decision making? Looks like on this basis, then I want to propose the following.

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We should, I think, think of the goal of medical decision making in welfare terms.

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In other words, the goal of medical decision making is that of identifying which medical option would best promote or maintain.

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In some cases, you can promote the patient's welfare to count as competent.

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If you accept that you have the goal, then then to count as competent.

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One must therefore be good enough at making decisions that track one's own welfare or one's own best interests.

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Now, no doubt many people will want to object right away.

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And the first objection, right, would be that, look, that's not always the goal of medical decision making.

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And often it is not always. Sometimes patients choose less good care in order to save money.

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Right. That happens a the US or sometimes they choose their care less based on their own welfare.

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But on what would be burdensome or not for their loved ones.

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In a non paternalistic world, competent adult patients are free to choose in these ways if they wish.

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However. Well, that's true, I grant.

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That's true. I don't think it has to undermine my claim, even though other considerations often come in.

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I think it's common to think of medical care as naturally focussed on the patients.

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Good. Other concerns are seen as precisely that.

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Other concerns, nonmedical concerns. Thus,

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I think it's fair to say that patient welfare is normative for medical decision

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making in the sense that the patient's good is the default goal of such decisions.

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It's the goal, we assume, unless we're made aware, that other concerns are at stake.

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And because of this, I also think that it's fair when we come to think about capacity assessment,

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to insist that individuals be able to look after their own interests, at least as well as most other people can.

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That's not to say they have to look after those interests is to say they're able to.

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So, for example, if you are able to look out for your interests to this degree, then you are free to do what you like.

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You can then decide against your own interests if that's what you want.

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But if you are not even able to look out for yourself to this degree,

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then it seems to me that you should not be given the freedom to cast your own welfare aside.

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All right. So this, I suggest, is a better way to conceptualise what we're trying to determine when we assess capacity.

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However, you might think, well, there's no ethically sound way you could ever use this in any way.

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And if you couldn't bring it to bear, it's too controversial. And I'd like to think that maybe there is.

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So I'm going to try to show you a way.

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I propose that first that we consider the traditional cut for cognitive abilities of the standard model to be necessary for capacity,

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but that we add two additional conditions which are also necessary, but which will only be applicable in a small number of cases.

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And the idea is that if these following two conditions both hold,

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then I think we have strong evidence of incapacity and we would be justified in setting aside a patient's decision.

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If that seems the best thing to do. So what are these two requirements?

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All right, now. The first one says the patient must appear to be making a serious prudential

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mistake right here and now you're assessing their capacity to refuse treatment.

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And they seem to be poised to make a terrible mistake.

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Second, the patient must be known to have a condition or to be in a state that in turn is known

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to make those who have it more likely to make prudential mistakes than ordinary people.

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All right. So far, it's vague. We'll have to work it out a bit.

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Look, the first requirement says that we have to decide whether the individual is making a serious prudential mistake.

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But people will say, how can we determine that?

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Right. To do so, we would need a theory of welfare. We don't have one or at least not one that's widely accepted.

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Moreover, we have to wait for philosophers to come up with the theory welfare to agree on one anyway.

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We might be waiting for eternity. And if, on the other hand, we rely on certain common ideas about welfare, for example,

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that it's usually better to preserve life than we really do risk imposing values on individuals.

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In cases where those specific values aren't appropriate. So where do we go?

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Well, despite these legitimate concerns,

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I think the proposal could be made to work without settling on anything as complicated or as controversial as a full theory of welfare.

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So there's three aspects of my approach that I think helped make it less controversial.

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So first, I think we should just appeal to three broad components of welfare in our thinking.

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Right. We should. These are things that I think pretty much any theory will recognise as having weight.

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Whether it's different accounts of why they matter might exist.

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But I suggest that on the positive side, we consider first psychological happiness.

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And I want to emphasise here right by happiness. I do not mean, as some philosophers would say, the smiley face feeling.

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Right. I'm talking about something better than that. Something like a generally positive, affectively grounded outlook on life.

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Right. And that's clearly helpful for people in lots of ways.

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Second, I think we should recognise the value of what I call evaluative engagement.

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And by this, I mean a person's direct engagement with people and projects that matter deeply to her evaluative

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engagement might mean doing the things one does to nurture and sustain a relationship.

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Like spending time with loved ones, helping them in various ways and so on.

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It can also mean engaging with projects or working towards highly valued goals.

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Most theorists can agree. I think we can agree that other things being equal, people are better off when they're happier and other things being equal.

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People are better off when they're able to engage in the right ways with the things that matter most to them.

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On the negative side, you have to think about the negative side in this case, we should consider suffering, right?

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Which I take to include both physical pain and all forms of emotional or psychological suffering.

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And again, I think, you know, pretty much anyone can agree might have to fiddle with what counts as suffering.

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But everyone can agree that severe suffering is just bad for us, right?

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It's intrinsically bad and it's instrumentally bad. It drives out happiness.

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It undermines the ability to engage with the things that matter to you.

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And so not only is it bad in itself, but it drives all the other goods away as well.

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So those are the things. Just using those three components. I think we can talk about welfare quite well.

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We get along way just by making those useful.

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If it wasn't already obvious from the things that I picked for the list, I think we should interpret these things subjectively.

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So if we ask if someone is making a prudential steak, we want to know things like how this person will be affected by the choice.

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We want to ask whether if this person makes this choice, will she suffer or will she be happy or will she be able to pursue what matters to her,

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not whether you would be happy or able to pursue what matters to you or whether the ordinary person would.

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And finally, and this is important, I think a lot turns on the fact that the question I'm asking here is just whether or not an

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individual seems to be making a serious prudential mistake and that qualifier serious matters,

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since it would require a much more fine grained and probably much more controversial theory of welfare to be able to detect small prudential mistakes,

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for example, a choice that's bad. Only a little bit worse than some other choice.

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That's that's controversial. But what we're concerned here where we're concerned with here are serious prudential mistakes,

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which I take to be cases where it is plausible to believe that a person is about to choose something that is much,

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much worse for her than something else easily available to her.

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A couple examples to illustrate. I doubt many people would debate that these are prudential mistakes, right?

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It would be a serious prudential mistake, I think,

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to choose something that leads to significant suffering such that the life you lead in the future has a lot more negatives than positives.

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Now, it's not just the choosing of that. That's the mistake. It's the choosing of that when you could easily have avoided that.

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Right. That's a mistake.

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I don't think it's a serious prudential mistake for a subject to choose death in cases where it's quite plausible that if she lived,

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her life would contain significantly more positives, the negatives as she judges them.

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Right. That's a mistake to. All right, to decide whether or not someone is making serious prudential mistake,

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one must try to consider the most likely outcomes of the different prongs of the choice, at least in rough terms.

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So you'd have to ask things like with the life be dominated by suffering, would it have as many opportunities in it for pursuit of her values?

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Would it have enough opportunities for that? And so on. All right.

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Now, I also it's worth mentioning this because people with a very practical focus are asked me this sometimes,

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so if it's big if but if one were to try to develop this proposal further,

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I wouldn't imagine that would go around asking untrained individuals or family members to make these kinds of assessments.

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Rather, I imagine that if this idea were accepted, it would be necessary to train professionals to think in terms of these elements,

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to thinks about them subjectively and to think more in a more rich and complex way about what these things are.

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But then we trained professionals right now to think about the subtleties of the four abilities.

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So I think you'd want to have an amount of people involved in developing your training materials.

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It would also probably be advisable to develop some interim instruments that would help to guide conversations.

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If you need to have a conversation with patients or family members as part of trying to understand the patient's values,

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what makes them happy and so on.

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And then finally, it would be advisable for more than one person to be involved in any particular assessment decision of this sort.

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And if you have several people involved and they cannot agree that a prudential mistake is imminent.

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Well, then my condition, one wouldn't be satisfied.

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And since I'm assuming the patient has the four basic cognitive capacities, she would count as competent to make her own choice.

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But in a case like tests from earlier,

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who's anorexia is still in the early stages where we know that full recovery is still a real possibility and maybe even some more likely than not.

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It seems clear that to starve herself to death would be to throw away many years of life that could be quite good for her.

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From her perspective, if she would. And similarly,

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it seems plausible to suppose that Donna is making a prudential mistake because she still has some number of years of life ahead of her.

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She has many good friends and interesting career, how she's currently and understandably emotionally distressed.

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But it's reasonable to think this will pass. All right.

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Now, at this point, objector will want to push something else.

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He'll want to push the issue of values. Are we now doing precisely what we agreed earlier?

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It was ethically forbidden. Namely, be judging a person's values in a bad way?

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Well, I say no, not really. Not in the way people typically suppose when we assess whether a person is making a serious prudential mistake.

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We're not passing judgement on particular values. We're not saying this is a bad value.

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You shouldn't have this. No one should care about that.

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Rather, we're making limited judgements about the degree to which a person's current values fit with her own welfare,

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as she herself will ultimately come to view it.

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It's a familiar fact that people sometimes adopt values or goals or act on a preference at one time,

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only to find later that that has undermined their happiness or it's undermined their pursuit of other things they care about as much or more.

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And in such cases, we say the individual has undermined herself.

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So a commitment to looking at how a decision will impact a person's welfare over time need

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not commit us to saying that particular values are good or bad in and of themselves.

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We're seeking to identify a kind of inconsistency. It's just that you're looking at an inconsistency that plays itself out over time.

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It's an inconsistency between some of a person's values, those that she would act on now if allowed to.

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And the rest of her values and her overall faith. So then you might think, well, the biggest problem facing this proposal is that it's paternalistic.

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I mean, it appeals to individual welfare and wants to use facts about welfare to limit individual freedom.

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I mean, isn't that just what paternalism is? Well, yes, in a way.

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But first, I think we have to remember that not all paternalism, at least depending on how you define it, it is objectionable.

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Right. We wouldn't say, for example, that it's morally objectionable to treat a child paternalistically.

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We typically, however, use competence as our dividing line such that if.

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Substitutes, it counts as morally objectionable paternalism if it's directed at a competent adult, but not if it's not.

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But we can't use that here, of course, because that's what we're struggling with, who has competence?

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And so who is it that we're morally allowed to interfere with and who are we not?

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But I do think that this line of thinking points to a solution.

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What I think is an equally good way of marking the distinction between objectionable and unobjectionable paternalism.

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So recall that the freedom we grant to competent adults is the freedom, not just to choose well, but to choose badly.

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It's the freedom to make prudential mistakes. And as we know, many people make them.

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And recall also that one string theory of capacity is that most ordinary adult human beings must count as competent.

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Most of the time they put these things together. And this suggests to me the following.

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Right. Yeah, as a society, we have agreed, perhaps just tacitly,

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but we accept or we work with the assumption that ordinary adults have a degree of decision making capacity that, while not perfect, is good enough.

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But if this good enough ability to look out for oneself is what warrants the label competence,

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then an individual with less of that ability to look out for herself less than the ordinary adult should count as incompetent.

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So I'm suggesting that it would be OK.

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It would be not objectionable, paternalistic to intervene with an individual's choice if,

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in addition to thinking she was making a serious prudential mistake,

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we also had good reason to think this individual is more likely to make prudential mistakes than an ordinary adult.

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And that brings us right back to my second require.

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So you may recall this one is somewhat vague in its wording, but, you know,

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this is a sketch that hopefully we could develop further if we found it promising.

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So, second, the patient must be known to have a condition or to be in a state.

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That intern is known to make those who have it more likely to make credentialled mistakes than ordinary people.

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Now, to apply this right. We'd have to have various kinds of evidence.

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But, you know, we might be able to do that. We'll have to acquire evidence over time about potential mistake in particular populations.

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We might be able to do that. It might be possible.

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In fact, they might already in some cases have data that's relevant to that question without having thought of it in that way.

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For example, what if we could study numerous women with anorexia nervosa focussing particularly on those who go on to full recovery?

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But a subset of that who at one point or another were on the verge of death and were forced into treatment since these are people who recovered.

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We go on to ask, how did their lives after recovery typically go up?

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Are they full of misery and suffering? Or is it rather true that once cured, such women go on to live meaningful lives from their own perspective?

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If we knew that most young women treated early go on to recover well,

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and if we knew that those who recovered went on to live well to think well of their life, then we would have.

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We'd have good reason to conclude that death at a young age from starvation would have been a serious prudential mistake for those women.

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And we have reason to think if we have a new person who is a member of this group,

391
00:44:48,400 --> 00:44:54,880
that we have more than we have some evidence to think that she's likely that if she's asking for the same thing,

392
00:44:54,880 --> 00:45:00,030
it's very likely that it's a Prudential was speaking for her as well.

393
00:45:00,030 --> 00:45:06,430
Right now, there are various reasons why you can't appeal to condition to buy itself.

394
00:45:06,430 --> 00:45:12,790
Recall the ethical imperative to try to give even those with mental illness some degree of freedom of choice.

395
00:45:12,790 --> 00:45:21,610
We don't want to restrict all the choices of all people with particular diagnoses, but my requirements specifically avoids that.

396
00:45:21,610 --> 00:45:29,170
It requires that the individual have a condition known to increase the likelihood of prudential mistake.

397
00:45:29,170 --> 00:45:38,380
But that only becomes operative if it also seems likely that the particular decision at hand is a prudential mistake.

398
00:45:38,380 --> 00:45:44,830
So if someone with a mental illness, even one that often in other contexts leads to Prudential,

399
00:45:44,830 --> 00:45:49,480
the state doesn't appear to be making any prudential mistakes or serious ones at the moment.

400
00:45:49,480 --> 00:45:57,790
Then choices still hurts. Moreover, smaller, less consequential decisions remain completely untouched by this framework,

401
00:45:57,790 --> 00:46:05,260
since even if the decisions involved are on the stake, in some sense, they're not serious ones.

402
00:46:05,260 --> 00:46:12,160
So we also can't appeal to one by itself. We saw that alone.

403
00:46:12,160 --> 00:46:17,350
There's a chance that you will sometimes be objectionable in paternalistic because one would

404
00:46:17,350 --> 00:46:23,050
allow us to limit freedom whenever we think it likely that someone's making a credential mistake.

405
00:46:23,050 --> 00:46:28,030
But when one is constrained by two, it doesn't do that.

406
00:46:28,030 --> 00:46:35,480
So they work together. When they work together, we give weight to the possibility of prudential mistake.

407
00:46:35,480 --> 00:46:42,410
Only when a person is already known to be at higher than ordinary risk of pretention steak.

408
00:46:42,410 --> 00:46:52,310
And in a similar vein, we can't appeal to condition to a loan for that would restrict freedom on the basis of diagnosis.

409
00:46:52,310 --> 00:47:01,220
And that would be too extreme. But in conjunction with one, the relevance of diagnosis is sharply limited.

410
00:47:01,220 --> 00:47:09,080
It merely offers support for thinking that we really do have an instance of prudential mistake before us.

411
00:47:09,080 --> 00:47:16,170
All right. So there are two parts, right, there is the proposal.

412
00:47:16,170 --> 00:47:21,810
What's really going on with a capacity assessment? What you what you think the issue is?

413
00:47:21,810 --> 00:47:24,330
Why is the current framework problematic?

414
00:47:24,330 --> 00:47:33,840
And then there's a proposal that has these two additional requirements that each can be discussed in its self.

415
00:47:33,840 --> 00:47:41,340
And I'm happy to field questions on any aspect of it. I put on the last slide here the conditions against so people can remember them.

416
00:47:41,340 --> 00:47:44,990
And that's it. Thank you very much.