Welcome, everyone, to the second St. Cross special ethics seminar for the term.
Today, we've got Jennifer Hawkins. She is associate research professor in the Department of Philosophy at Duke and a cool
faculty member of the Trent Centre for Bioethics at the Duke University School of Medicine.
Her philosophical research interests focus on well-being, happiness.
There is of emotion and practical reason and notions of self and the interests of the medical ethics focussed on disability,
the care of patients with dementia, assessment of decision making capacity, psychiatric illness, and the nature of suffering.
And before just before we get started, Jenny, just a quick note to everyone about the way we'll handle the discussion.
So Jen is going to do her talk, then we'll basically have at least half the time for discussion, give or take.
We prefer if you kind of raise your virtual hand and then I can call on you to talk.
You'll be unmuted and you can ask your question directly.
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.
But it's easier for all of us if you just ask your question first and if you can do it.
That's the second half. So the first half will hand over to Jenny for her talk effect.
Values and problems, assessing decision making capacity. Jenny.
All right. Can people hear you hear me right? Perfectly OK.
So thank you. Thank you for having me. So I've been thinking about this for quite some time.
I want to start with a little point about terminology in this talk.
I treat decision making capacity, which I often just shortened to capacity and mental competence,
which I shorten to competence as basically two ways of talking about the same thing.
And I am well aware that not everyone treats these as strictly equivalent.
And if anyone wants to talk about it afterwards, I'm happy to.
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.
And so you won't be confused by anything I say. All right.
That was that was excellent. All right. I'll get into the string and get here.
All right. So as I am sure you all know, informed consent, whether it's for treatment or research,
presupposes that the individual giving consent has decision making capacity or is mentally competent and relatively speaking.
And I do mean relatively philosophers have paid little attention to this concept,
which is a bit surprising, I think, given that the moral stakes here are so high.
I mean, obviously,
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.
If I'm deemed to have the capacity to make a particular medical decision, then in most settings at least,
my decision will be honoured regardless of what anyone else thinks about it.
But if I'm not deemed to have capacity, I won't get to choose.
Informed consent will be obtained from someone else with the authority to decide for me.
So a lot turns on this idea. Right.
So here what I want to do in this talk is basically three things.
First, I want to familiarise you with a problem that I see,
a limitation that I think exists in the current ways of thinking about decision making capacity.
Then I'm going to argue for a particular diagnosis of the problem.
And that's a kind of stand alone part. Like you might think I'm right about the diagnosis, but I disagree with.
But I have to say later, after the diagnosis, I'm then going to try and sketch a possible solution.
All right. So that's where we're headed.
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.
Nonetheless, there is one model of decision making capacity. It's known as the Four Abilities model developed by Thomas Grusovin and Paul Appelbaum.
And it has clearly emerged as the dominant mode of thinking about this, even though it's not the only one.
It's now widely used throughout the US. And this might be surprising.
We'll come back to this. It's used to some extent in the UK as well.
At any rate, in addition to developing the model, Crista Anne Applebaum also developed an empirical instrument that was designed
to assess the degree to which a particular patient has these four abilities.
It's called the Mac Cat Tea, which stands for MacArthur Competence Assessment Tool Treatment.
There's also an R version for research.
Nonetheless, there is and there has been for some time a small group of dissenting voices claiming that this model is inadequate.
And I count myself as someone who's recently joined the ranks of the dissenters.
Now, the Four Abilities model focuses on certain basic cognitive abilities that are considered necessary for a person to have capacity.
And I'm happy to allow that possessing these cognitive abilities to the right degree is indeed necessary for capacity.
But I'm equally certain that possessing them is not in every case sufficient.
Right.
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.
All right. So before presenting the four abilities model in detail,
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.
The first ethical constraint, I think, of as value neutrality.
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.
In accordance with their own values. Even if those values differ from those of their doctor or family or other folks.
And to help guarantee this freedom.
The following principle was adopted very early on as a sort of foundational principle of capacity assessment and the idea
that capacity should never be determined simply on the basis of what the patient wants or chooses or professes to value.
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,
for some people, we can't say a person lacks capacity simply because they choose death or something that will lead to it.
Instead, we should distinguish competent from incompetent choices by looking at the process that led up to the choice.
Now, there's a second important constraint that I think is diagnostic neutrality.
So just as capacity is not supposed to be determined simply by what the patient wants,
neither is it to be supposed to be determined simply on the basis of a diagnosis.
And this is particularly important for those with mental illness or some degree of cognitive deficit,
since historically those individuals were generally just thought to have no ability to make any decisions at all.
The correct framework is much more flexible,
and it allows that some people with mental illnesses and with cognitive deficits may have capacity, even if some others like it.
Indeed, a particular person might have the capacity to make this decision, but not that one.
But at any rate. Let's see.
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,
but whether there is something, whatever it is, that is getting in the way of the processes that are important to decision making.
So that's how people think about that. All right.
The third constraint, I think, of as inclusive inclusiveness or as I put it here, inclusive city.
And this one doesn't get talked about as much, but I think it's just as important.
And I think it has really shaped the way debates about capacity have gone.
So in building a model for assessing capacity.
We have to be careful not to build in so much that too many people turn out to lack capacity.
Ordinarily, we assume that ordinary adult human beings are competent and we need this to be true not just contingently,
but as necessarily as part of the framework for ethical reasons.
And you can see this if you think about the fact that police least one way of thinking about it,
the whole point of the patients rights movement of the 60s,
70s and 80s was to ensure that most people are allowed to be involved in their own medical decision making.
So that means that from the very beginning, the goal has always been to minimise interference to the extent that we can,
and that that translates into ensuring that most people count as competent.
Most of the time now, it does mean that part of accepting this idea means that we have to accept that even those
who legitimately are declared to be competent are not in any sense perfect decision makers,
right? They can and they frequently do make mistakes, but nonetheless, they're competent.
All right. Now, seems to me that one reason this for abilities model has become so popular and
is so widely adopted is that it fits very well with all of these constraints.
Right. It's process oriented. It makes no reference to the patient's values or diagnosis.
It's minimalist interpretation of its own cognitive standards is compatible with inclusive city.
Right. So I think that's some you know, why we why has taken hold now.
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.
They're the ability to evidence a choice, the ability to understand, the ability to appreciate and the ability to reason.
Now, as many of you know, there's a slightly different list that you'd find in the UK Mental Health Act.
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.
But it is significant. And again, we can talk more about this later.
But a number of people have argued that despite the differences in labels, the two systems are basically equivalent.
There are slightly different labels for the same underlying abilities and therefore you can treat them as the same at any rate.
That explains why some people use the four abilities model here.
All right. At any rate, back to the way Grasso and Appelbaum set it up, just you kind of know what they're about.
The first ability they list, the ability to evidence a choice is the least interesting one.
It's just put there to remind clinicians that no matter what other capacities a patient may have,
a patient must be able to clearly communicate that decision.
And if other people are going to give it authority and honour it.
But that's not really relevant to our discussion. So I'm not going to come back to that.
The ability to understand the second one is central, of course.
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.
And if it's in question, then it's usually tested by talking with the patient about the decisions she faces,
giving her information and perhaps asking her to explain things back to the
interviewer to make sure she's not just parroting what the interviewer said.
The third ability, the ability to appreciate is not exactly what it sounds like, and it can often be confusing to people.
It requires, in addition to a grasp of information, that a person also believes that the information is true of her.
So it's relevant. You might think. Does that add or do we need that to be added?
Well, it is relevant since there are at least some cases that arise where patients are able to grasp what is being said.
They understand it fully, but they refuse to believe that it's true or that it's true of them.
Right. So an example would be extreme example,
but humorous to some degree would be a patient with ICU psychosis who grasps that her doctors are telling her she's seriously ill,
that she really shouldn't leave the ICU, but who internally believes she's just fine and who thinks that these people who
claim to be her doctors are really secret agents who are plotting her death?
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,
the failure is based on delusion, then she lacks Decision-Making capacity.
And finally, there's the ability to reason. And this is generally interpreted in a very minimal way.
It's the ability to consider several different possible outcomes to relate these to your values and concerns and weigh them accordingly.
All right. So that's the framework that's been so powerful. What's wrong with it?
I think we can bring it out in a few cases. So consider the first case, and this one involves strong emotions.
Donna is a woman in her 50s. She has type one diabetes that has sometimes given her problems.
Yet despite her illness, she very much has enjoyed her life. She has an interesting career as an artist.
She's very physically active and she has a number of close friends.
Suddenly, her condition deteriorates rather quickly and she learns that she will have to have an above the knee leg amputation.
This is tough news to get. She responds pretty well to it.
She appears to accept it. She sets about planning for the changes it will make in her life.
Her friends report that she seems a bit and she comes willingly to the hospital for her surgery.
However, immediately after the surgery, she informs her care team that she wants no further treatment except pain relief.
She's quite clear about this and she's clear that this includes post-operative medications,
that even if she should develop post surgical infection, she wants no antibiotics.
She's very clear nothing except pain. And they're really puzzled by her change in attitude and the forcefulness of her demands.
So her doctor calls for psychiatric console.
The side president who comes to interview Donna, discovers after some probing that something indeed has happened.
Donna's husband visited her in the hospital and told her he was leaving her for someone else,
that he would be moving out of their home while she was recovering in hospital.
And this apparently was a complete shock to. And it sheds new light on her treatment refusals.
She's no doubt filled with grief and despair and confused.
But our question is, does she have the capacity right now to make such a consequential decision?
She's assessed by the same resident according to the four abilities model, and she's found to have capacity.
Now, consider a different kind of case.
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.
Consider a young woman in her 20s that I called Tess. Tess has anorexia nervosa.
And although she's been stable for a while, she's now started losing weight again, bringing her two extremely dangerous weight levels.
She's very likely to die if she doesn't go into hospital and allow herself to be fed.
But she refuses, saying she knows she has an illness.
She knows she's incredibly thin. She knows she's risking death.
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.
Well, interestingly, according to the Mac cat, tea and personal interviews, looking for these four abilities, it seems that she does.
All right. So it's cases like these that raised concerns about capacity assessment.
Many people, including myself,
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.
Overwhelming emotions seem to have completely altered Donna's outlook on her life almost overnight.
But presumably that is temporary, though we don't know how long it will take her to recover.
But recall our earlier constraints. We can't just say she lacks capacity because strong emotion is shaping her decision.
After all, a broad appeal to strong emotion making that a criterion of capacity, it would rule too many people incompetent.
Moreover, emotions aren't always bad forces. They play a role in many of our decisions, including many of our good ones.
Could we instead appeal to the fact, which is probably true, that she's depressed or that she's experiencing emotional trauma?
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.
Not all people with depression or in from experiencing much from from lack capacity or now consider tests here.
Emotions are less central. The real stumbling block here is her claim that she simply prefers to die rather than gain weight.
She's telling us, in effect, that she values thinness more than life itself.
But as we saw, we shouldn't rule someone incompetent on the basis of unusual values.
That appears to violate value neutrality. Nor can we simply appeal to the anorexia because that would violate the commitment to diagnosis neutrality.
Presumably not all patients with anorexia lack capacity.
Presumably, even tennis has the capacity to make many other decisions.
All right. So that's a problem.
I'm not going to talk about reconceptualizing, what it is we're doing with capacity when we're trying to assess capacity.
When I think about the way the current framework developed,
I don't find it really all that surprising that it can't capture all of the cases that it really should.
It was intentionally setup to focus on process without reference to outcomes or the situation and the process.
And to the extent that it's assessed as assessed relative to some momentary given preference of the subject.
But in ordinary life, we sometimes, perhaps even often judge the goodness or badness of decision making in a different way.
We look to the general type of goal or end that decision making.
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.
So let me give you a little example.
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.
It's her responsibility both to ensure productivity and look after her employees well-being.
So her goal is to find some way of appeasing the various individuals involved, if she can.
And to return the group to harmony. Within the constraints imposed by her situation,
she searches for a solution that she can justify to them as fair and which
hopefully will satisfy enough people to restore group goodwill and productivity.
Now, for our purposes, my point is simply this the goodness or badness of Jill's decision making process is most
naturally assessed relative to the general type of goal appropriate in the setting,
the goal of managing well. When we discuss decision making, it's also worth noting we can do so objectively or subjectively assess it.
So assume there's some concrete things that Jill could do to return Harmony to her group.
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.
Her decision is objectively good. If in virtue of good thinking, she hits on one of the better managerial solutions available.
Normally, however, I think we at least if we're interested in decision making as opposed to what is finally concluded.
We assess that subjectively.
And this is because it's always possible that there are things relevant to a decision that an individual decision maker doesn't know.
And probably in some cases can't reasonably be expected to know.
Because of this, we typically assess the goodness or badness of decision making by considering whether the decision maker knew what she
reasonably ought to have known and then whether she used that knowledge as well as possible in pursuit of the appropriate goal.
So from now on, I'll just assume we're talking about subject of decision making.
OK, so how could this possibly relate? You might think, to medical decision making?
Well, first, as illustrated above, I think that in order to really assess whether someone is able to make a particular decision,
you have to have a prior sense of what the general goal of that type of decision making is.
Now, Anderson,
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.
We're not asking people to be perfect. Right. But still even to say what?
Well, enough is and identify the abilities needed to make decisions that are good enough.
We need an account of the type of goal in order to give us a sense.
Of what good medical decision making? Looks like on this basis, then I want to propose the following.
We should, I think, think of the goal of medical decision making in welfare terms.
In other words, the goal of medical decision making is that of identifying which medical option would best promote or maintain.
In some cases, you can promote the patient's welfare to count as competent.
If you accept that you have the goal, then then to count as competent.
One must therefore be good enough at making decisions that track one's own welfare or one's own best interests.
Now, no doubt many people will want to object right away.
And the first objection, right, would be that, look, that's not always the goal of medical decision making.
And often it is not always. Sometimes patients choose less good care in order to save money.
Right. That happens a the US or sometimes they choose their care less based on their own welfare.
But on what would be burdensome or not for their loved ones.
In a non paternalistic world, competent adult patients are free to choose in these ways if they wish.
However. Well, that's true, I grant.
That's true. I don't think it has to undermine my claim, even though other considerations often come in.
I think it's common to think of medical care as naturally focussed on the patients.
Good. Other concerns are seen as precisely that.
Other concerns, nonmedical concerns. Thus,
I think it's fair to say that patient welfare is normative for medical decision
making in the sense that the patient's good is the default goal of such decisions.
It's the goal, we assume, unless we're made aware, that other concerns are at stake.
And because of this, I also think that it's fair when we come to think about capacity assessment,
to insist that individuals be able to look after their own interests, at least as well as most other people can.
That's not to say they have to look after those interests is to say they're able to.
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.
You can then decide against your own interests if that's what you want.
But if you are not even able to look out for yourself to this degree,
then it seems to me that you should not be given the freedom to cast your own welfare aside.
All right. So this, I suggest, is a better way to conceptualise what we're trying to determine when we assess capacity.
However, you might think, well, there's no ethically sound way you could ever use this in any way.
And if you couldn't bring it to bear, it's too controversial. And I'd like to think that maybe there is.
So I'm going to try to show you a way.
I propose that first that we consider the traditional cut for cognitive abilities of the standard model to be necessary for capacity,
but that we add two additional conditions which are also necessary, but which will only be applicable in a small number of cases.
And the idea is that if these following two conditions both hold,
then I think we have strong evidence of incapacity and we would be justified in setting aside a patient's decision.
If that seems the best thing to do. So what are these two requirements?
All right, now. The first one says the patient must appear to be making a serious prudential
mistake right here and now you're assessing their capacity to refuse treatment.
And they seem to be poised to make a terrible mistake.
Second, the patient must be known to have a condition or to be in a state that in turn is known
to make those who have it more likely to make prudential mistakes than ordinary people.
All right. So far, it's vague. We'll have to work it out a bit.
Look, the first requirement says that we have to decide whether the individual is making a serious prudential mistake.
But people will say, how can we determine that?
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.
Moreover, we have to wait for philosophers to come up with the theory welfare to agree on one anyway.
We might be waiting for eternity. And if, on the other hand, we rely on certain common ideas about welfare, for example,
that it's usually better to preserve life than we really do risk imposing values on individuals.
In cases where those specific values aren't appropriate. So where do we go?
Well, despite these legitimate concerns,
I think the proposal could be made to work without settling on anything as complicated or as controversial as a full theory of welfare.
So there's three aspects of my approach that I think helped make it less controversial.
So first, I think we should just appeal to three broad components of welfare in our thinking.
Right. We should. These are things that I think pretty much any theory will recognise as having weight.
Whether it's different accounts of why they matter might exist.
But I suggest that on the positive side, we consider first psychological happiness.
And I want to emphasise here right by happiness. I do not mean, as some philosophers would say, the smiley face feeling.
Right. I'm talking about something better than that. Something like a generally positive, affectively grounded outlook on life.
Right. And that's clearly helpful for people in lots of ways.
Second, I think we should recognise the value of what I call evaluative engagement.
And by this, I mean a person's direct engagement with people and projects that matter deeply to her evaluative
engagement might mean doing the things one does to nurture and sustain a relationship.
Like spending time with loved ones, helping them in various ways and so on.
It can also mean engaging with projects or working towards highly valued goals.
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.
People are better off when they're able to engage in the right ways with the things that matter most to them.
On the negative side, you have to think about the negative side in this case, we should consider suffering, right?
Which I take to include both physical pain and all forms of emotional or psychological suffering.
And again, I think, you know, pretty much anyone can agree might have to fiddle with what counts as suffering.
But everyone can agree that severe suffering is just bad for us, right?
It's intrinsically bad and it's instrumentally bad. It drives out happiness.
It undermines the ability to engage with the things that matter to you.
And so not only is it bad in itself, but it drives all the other goods away as well.
So those are the things. Just using those three components. I think we can talk about welfare quite well.
We get along way just by making those useful.
If it wasn't already obvious from the things that I picked for the list, I think we should interpret these things subjectively.
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.
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,
not whether you would be happy or able to pursue what matters to you or whether the ordinary person would.
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
individual seems to be making a serious prudential mistake and that qualifier serious matters,
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,
for example, a choice that's bad. Only a little bit worse than some other choice.
That's that's controversial. But what we're concerned here where we're concerned with here are serious prudential mistakes,
which I take to be cases where it is plausible to believe that a person is about to choose something that is much,
much worse for her than something else easily available to her.
A couple examples to illustrate. I doubt many people would debate that these are prudential mistakes, right?
It would be a serious prudential mistake, I think,
to choose something that leads to significant suffering such that the life you lead in the future has a lot more negatives than positives.
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.
Right. That's a mistake.
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,
her life would contain significantly more positives, the negatives as she judges them.
Right. That's a mistake to. All right, to decide whether or not someone is making serious prudential mistake,
one must try to consider the most likely outcomes of the different prongs of the choice, at least in rough terms.
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?
Would it have enough opportunities for that? And so on. All right.
Now, I also it's worth mentioning this because people with a very practical focus are asked me this sometimes,
so if it's big if but if one were to try to develop this proposal further,
I wouldn't imagine that would go around asking untrained individuals or family members to make these kinds of assessments.
Rather, I imagine that if this idea were accepted, it would be necessary to train professionals to think in terms of these elements,
to thinks about them subjectively and to think more in a more rich and complex way about what these things are.
But then we trained professionals right now to think about the subtleties of the four abilities.
So I think you'd want to have an amount of people involved in developing your training materials.
It would also probably be advisable to develop some interim instruments that would help to guide conversations.
If you need to have a conversation with patients or family members as part of trying to understand the patient's values,
what makes them happy and so on.
And then finally, it would be advisable for more than one person to be involved in any particular assessment decision of this sort.
And if you have several people involved and they cannot agree that a prudential mistake is imminent.
Well, then my condition, one wouldn't be satisfied.
And since I'm assuming the patient has the four basic cognitive capacities, she would count as competent to make her own choice.
But in a case like tests from earlier,
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.
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.
From her perspective, if she would. And similarly,
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.
She has many good friends and interesting career, how she's currently and understandably emotionally distressed.
But it's reasonable to think this will pass. All right.
Now, at this point, objector will want to push something else.
He'll want to push the issue of values. Are we now doing precisely what we agreed earlier?
It was ethically forbidden. Namely, be judging a person's values in a bad way?
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.
We're not passing judgement on particular values. We're not saying this is a bad value.
You shouldn't have this. No one should care about that.
Rather, we're making limited judgements about the degree to which a person's current values fit with her own welfare,
as she herself will ultimately come to view it.
It's a familiar fact that people sometimes adopt values or goals or act on a preference at one time,
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.
And in such cases, we say the individual has undermined herself.
So a commitment to looking at how a decision will impact a person's welfare over time need
not commit us to saying that particular values are good or bad in and of themselves.
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.
It's an inconsistency between some of a person's values, those that she would act on now if allowed to.
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.
I mean, it appeals to individual welfare and wants to use facts about welfare to limit individual freedom.
I mean, isn't that just what paternalism is? Well, yes, in a way.
But first, I think we have to remember that not all paternalism, at least depending on how you define it, it is objectionable.
Right. We wouldn't say, for example, that it's morally objectionable to treat a child paternalistically.
We typically, however, use competence as our dividing line such that if.
Substitutes, it counts as morally objectionable paternalism if it's directed at a competent adult, but not if it's not.
But we can't use that here, of course, because that's what we're struggling with, who has competence?
And so who is it that we're morally allowed to interfere with and who are we not?
But I do think that this line of thinking points to a solution.
What I think is an equally good way of marking the distinction between objectionable and unobjectionable paternalism.
So recall that the freedom we grant to competent adults is the freedom, not just to choose well, but to choose badly.
It's the freedom to make prudential mistakes. And as we know, many people make them.
And recall also that one string theory of capacity is that most ordinary adult human beings must count as competent.
Most of the time they put these things together. And this suggests to me the following.
Right. Yeah, as a society, we have agreed, perhaps just tacitly,
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.
But if this good enough ability to look out for oneself is what warrants the label competence,
then an individual with less of that ability to look out for herself less than the ordinary adult should count as incompetent.
So I'm suggesting that it would be OK.
It would be not objectionable, paternalistic to intervene with an individual's choice if,
in addition to thinking she was making a serious prudential mistake,
we also had good reason to think this individual is more likely to make prudential mistakes than an ordinary adult.
And that brings us right back to my second require.
So you may recall this one is somewhat vague in its wording, but, you know,
this is a sketch that hopefully we could develop further if we found it promising.
So, second, the patient must be known to have a condition or to be in a state.
That intern is known to make those who have it more likely to make credentialled mistakes than ordinary people.
Now, to apply this right. We'd have to have various kinds of evidence.
But, you know, we might be able to do that. We'll have to acquire evidence over time about potential mistake in particular populations.
We might be able to do that. It might be possible.
In fact, they might already in some cases have data that's relevant to that question without having thought of it in that way.
For example, what if we could study numerous women with anorexia nervosa focussing particularly on those who go on to full recovery?
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.
We go on to ask, how did their lives after recovery typically go up?
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?
If we knew that most young women treated early go on to recover well,
and if we knew that those who recovered went on to live well to think well of their life, then we would have.
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.
And we have reason to think if we have a new person who is a member of this group,
that we have more than we have some evidence to think that she's likely that if she's asking for the same thing,
it's very likely that it's a Prudential was speaking for her as well.
Right now, there are various reasons why you can't appeal to condition to buy itself.
Recall the ethical imperative to try to give even those with mental illness some degree of freedom of choice.
We don't want to restrict all the choices of all people with particular diagnoses, but my requirements specifically avoids that.
It requires that the individual have a condition known to increase the likelihood of prudential mistake.
But that only becomes operative if it also seems likely that the particular decision at hand is a prudential mistake.
So if someone with a mental illness, even one that often in other contexts leads to Prudential,
the state doesn't appear to be making any prudential mistakes or serious ones at the moment.
Then choices still hurts. Moreover, smaller, less consequential decisions remain completely untouched by this framework,
since even if the decisions involved are on the stake, in some sense, they're not serious ones.
So we also can't appeal to one by itself. We saw that alone.
There's a chance that you will sometimes be objectionable in paternalistic because one would
allow us to limit freedom whenever we think it likely that someone's making a credential mistake.
But when one is constrained by two, it doesn't do that.
So they work together. When they work together, we give weight to the possibility of prudential mistake.
Only when a person is already known to be at higher than ordinary risk of pretention steak.
And in a similar vein, we can't appeal to condition to a loan for that would restrict freedom on the basis of diagnosis.
And that would be too extreme. But in conjunction with one, the relevance of diagnosis is sharply limited.
It merely offers support for thinking that we really do have an instance of prudential mistake before us.
All right. So there are two parts, right, there is the proposal.
What's really going on with a capacity assessment? What you what you think the issue is?
Why is the current framework problematic?
And then there's a proposal that has these two additional requirements that each can be discussed in its self.
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.
And that's it. Thank you very much.