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

Abstract

BackgroundThe concept of decision-making capacity (DMC) or competence remains controversial, despite widespread use. Risk-sensitive DMC assessment (RS-DMC)—the idea that the higher the risk involved in a decision, the greater the decisional abilities required for DMC—has been particularly controversial. We conducted a systematic, descriptive review of the arguments for and against RS-DMC to clarify the debate.MethodsWe searched PubMed/MEDLINE (National Library of Medicine), PsycInfo (American Psychological Association) and Philpapers, updating our search to February 15th, 2022. We targeted peer-reviewed publications in English that argue for or against RS-DMC. Two reviewers independently screened the publications and extracted data from each eligible manuscript.ResultsOf 41 eligible publications, 22 supported a risk-sensitive threshold in DMC assessment. Most arguments for RS-DMC rely on its intuitive appeal and practical merits. The arguments against RS-DMC primarily express concerns about paternalism and the seeming asymmetry between consent and refusal; critics of RS-DMC support epistemic, rather than substantive (i.e., variable threshold), risk-sensitivity; counterarguments responding to criticisms of RS-DMC address charges of paternalism and exhibit a notable variety of responses to the issue of asymmetry. Authors used a variety of frameworks regarding the definition of DMC, its elements, and its relation to decisional authority, and these frameworks were significantly associated with positions on RS-DMC. A limitation of our review is that the coding relies on judgment and interpretation.ConclusionThe review suggests that some of the debate about RS-DMC stems from differences in underlying frameworks. Most defenses of RS-DMC rely on its intuitive appeal, while most criticisms reflect concerns about paternalism or the asymmetry between consent and refusal. Defenses of RS-DMC respond to the asymmetry problem in a variety of ways. Further research is needed on the implications of underlying frameworks, the asymmetry problem, and the distinction between epistemic and substantive models of RS-DMC.

Risk‐Sensitive Assessment of Decision‐Making Capacity: A Comprehensive Defense

“…Of course, some critics may resist even the acceptance of some risk of violating autonomy for the sake of a patient's welfare. This amounts to explicitly rejecting even an epistemic model of risk‐sensitive DMC assessment, a view not present in the literature on risk‐sensitive DMC assessment 46 . Such a position is indeed a stronger form of antipaternalism (what Feinberg refers to as “hard anti‐paternalism”) 47 .…”

“…4 A long-running debate-extending nearly five decades-about DMC concerns whether the assessment of competence should be sensitive to the riskbenefit implications of the decision at issue. 5 Lord Donaldson's famous statement in the 1994 English civil case Re T (adult refusal of medical treatment) seems to affirm a risk-sensitive assessment of DMC: "What matters is that the doctors should consider whether at that time [the patient] had a capacity which was commensurate with the gravity of the decision which he purported to make. The more serious the decision, the greater the capacity required."…”

An autonomy-based approach to assisted suicide: a way to avoid the expressivist objection against assisted dying laws

“…Decision-making capacity can be understood as risk relative, meaning that riskier choices require a higher threshold for capacity. 25 If setting the threshold for capacity involves a judgment of how risky and therefore, how potentially harmful a particular person's choice for assisted suicide is, assessing capacity would still entail an evaluative judgment of the severity of the person's suffering and the value of her life.…”

“…In objection to this, it could be argued that the autonomy-based approach does not fully avoid the expressivist objection because beneficence-based reasons may still play a role in the assessment of decision-making capacity. Decision-making capacity can be understood as risk relative, meaning that riskier choices require a higher threshold for capacity 25. If setting the threshold for capacity involves a judgment of how risky and therefore, how potentially harmful a particular person’s choice for assisted suicide is, assessing capacity would still entail an evaluative judgment of the severity of the person’s suffering and the value of her life.…”

“…Whether the threshold for decision-making capacity should be risk relative is, however, highly controversial 25 26. On an autonomy-based approach, the motives of a choice for assisted dying should not be judged according to standards of ‘objective rationality’22 (para.…”