Justifying risk-related standards of capacity via autonomy alone

Abstract

The debate over risk-related standards of decisional capacity remains one of the most important and unresolved challenges to our understanding of the demands of informed consent. On one hand, risk-related standards benefit from significant intuitive support. On the other hand, risk-related standards appear to be committed to asymmetrical capacity—a conceptual incoherence. This latter objection can be avoided by holding that risk-related standards are the result of evidential considerations introduced by (i) the reasonable person standard and (ii) the standing assumption that patients have capacity. This evidential approach to justifying risk-related standards of capacity avoids the most significant challenges faced by extant views while grounding risk-related standards in two fairly uncontroversial views in biomedical ethics.

Should Assessments of Decision-Making Capacity Be Risk-Sensitive? A Systematic Review

“…The amount of evidence or confidence required for a finding of competence should vary with risk 12 Wicclair, 1991aWicclair, ,b, 1999Cale, 1999;Checkland, 2001;DeMarco, 2002;Parker, 2004Parker, , 2006Brudney and Siegler, 2015;Manson, 2015;Lawlor, 2016;Graber, 2021 Neither Substantive nor Epistemic Does not endorse either view 7 Kloezen et al, 1988;Culver and Gert, 1990;Elliott, 1991;Saks, 1991;White, 1994;Maclean, 2000;Buller, 2001 on whether the substantive view of RS-DMC is appropriate.…”

“…Coheres with current practice RS-DMC coheres with current medical and/or legal practice and norms or common understanding in every day sense of competence "a concept that allows a raising or lowering of the standard for decision-making capacities depending upon the risks of the decision in question is clearly more consonant with the way people actually make informal competency determinations" (Buchanan and Brock, 1989) 17 Drane, 1985;Buchanan andBrock, 1986, 1989;Feinberg, 1986;Brock, 1991;Skene, 1991;Winick, 1991;Schopp, 1994;Wilks, 1997Wilks, , 1999Grisso and Appelbaum, 1998;Buchanan, 2004;Howe, 2010;Kim, 2010;Lawlor, 2016;Graber, 2021 P2 Balances autonomy and welfare RS-DMC is the best way to balance the competing values of autonomy/self-determination and well-being/welfare "It allows a better balance between the competing values of self-determination and well-being that are to be served by a determination of competence" (Buchanan and Brock, 1986) 14 Drane, 1984Drane, , 1985Buchanan andBrock, 1986, 1989;Eastman and Hope, 1988;Brock, 1991;Winick, 1991;Grisso and Appelbaum, 1998;Berghmans, 2001;Kim, 2010;Bolt and van Summeren, 2014;Brudney and Siegler, 2015;den Hartogh, 2016; Lawlor, 2016…”

“…However, asymmetrical capacity appears to be conceptually incoherent; in such cases, there is no sense to be made of the claim that the patient either has, or lacks, capacity." (Graber, 2021) 11 Culver and Gert, 1990;Wicclair, 1991aWicclair, ,b, 1999Cale, 1999;Maclean, 2000;Berghmans, 2001;Buller, 2001;Manson, 2015;Lawlor, 2016;Graber, 2021 C2 RS-DMC is paternalistic RS-DMC is inherently paternalistic and inconsistent with autonomy, or is highly prone to paternalistic abuse by allowing evaluator to set threshold according to their own values "[T]here is a danger that standards of understanding, reasoning, and so forth will be set arbitrarily and unattainably high by those who believe that paternalism is justified when perceived risks are great." (Wicclair, 1991a) 11 Culver and Gert, 1990;Saks, 1991;Wicclair, 1991a,b;White, 1994;Cale, 1999;Maclean, 2000;Berghmans, 2001;DeMarco, 2002;Buchanan, 2004;Parker, 2004 C3 Form of outcome-based DMC DMC assessment should be process-oriented and should not depend on the likely outcome of the choice an individual makes.…”

“…However, if the conclusion following from that investigation is negative, it holds for the consent as well as for the refusal." (den Hartogh, 2016) 15 Buchanan andBrock, 1986, 1989;Brock, 1991;Winick, 1991;Wilks, 1997Wilks, , 1999Berghmans, 2001;Checkland, 2001;Howe, 2010;Kim, 2010;Bolt and van Summeren, 2014;Brudney and Siegler, 2015;den Hartogh, 2016;Lawlor, 2016;Graber, 2021 CA2 RS-DMC is not paternalistic Any argument that claims RS-DMC is not paternalistic "it will generally be the case that if the patient's decision does not coincide with the opinion of the physician, this may trigger the need to assess the patient's capacity. This, however, should not be confused with 'lowering the bar' for incapacity."…”

“…Others show that asymmetry appears acceptable when determining whether to maintain or rebut the presumption of capacity in a given situation (Checkland, 2001;Brudney and Siegler, 2015). Other supporters of RS-DMC argue further that aside from the context of evaluating the presumption of capacity, RS-DMC not only does not need but should not include asymmetry of consent and refusal (Bolt and van Summeren, 2014;den Hartogh, 2016;Graber, 2021). 3 The question of whether or not consenting and refusing should be considered two separate decisions appears in the law as well.…”