Ulysses Arrangements in Psychiatric Treatment: Towards Proposals for Their Use Based on ‘Sharing’ Legal Capacity

Abstract

A 'Ulysses arrangement' (UA) is an agreement where a patient may arrange for psychiatric treatment or non-treatment to occur at a later stage when she expects to change her mind. In this article, I focus on 'competence-insensitive' UAs, which raise the question of the permissibility of overriding the patient's subsequent decisionally competent change of mind on the authority of the patient's own prior agreement. In "The Ethical Justification for Ulysses Arrangements", I consider sceptical and supportive arguments concerning competence-insensitive UAs, and argue that there are compelling reasons to give such UAs serious consideration. In "Decisional Competence and Legal Capacity in UAs", I examine the nature of decisional competence and legal capacity as they arise in UAs, an issue neglected by previous research. Using the distinctions which emerge, I then identify the legal structure of a competence-insensitive UA in terms of the types of legal capacity it embodies and go on to explain how types of legal capacity might be shared between the patient and a trusted other to offer support to the patient in the creation and implementation of a competence-insensitive UA. This is significant because it suggests possibilities for building patient support mechanisms into models of legal UAs, which has not addressed in the literature to date. Drawing on this, in "Using Insights from the Competence/Capacity Distinction to Enhance Patient Support in UAs", I offer two possible models to operationalize competence-insensitive UAs in law that allow for varying degrees of patient support through the involvement of a trusted other. Finally, I outline some potential obstacles implementing these models would face and highlight areas for further research.

Fluctuating capacity and advance decision-making in Bipolar Affective Disorder — Self-binding directives and self-determination

“…Gallagher, for example, states that ‘the sine qua non of a Ulysses clause is its attempt to provide for the irrevocability of an advance directive even during a time when the declarant is technically competent’ ( Gallagher, 1998 ). This assumption has, understandably, fuelled many of the strongest concerns about such measures ( Bielby, 2014; Davis, 2008; Dresser, 1982; Gallagher, 1998; Radden, 1994; Walker, 2012 ).…”

Relationships, autonomy and legal capacity: Mental capacity and support paradigms

“…Ulysses agreements are based upon two connected ideas: firstly, that autonomy is diachronic, and we can 51 Such as Representation Agreements, see n49 52 So named after legendary Greek hero Ulysses (Odysseus), who wanted to hear the song of the sirens although it would render him incapable of rational thought and draw him to self-destruction. He asked his men to tie him to the mast of his ship as they sailed past the sirens, to plug their ears with wax and not to untie him whatever he might say (Bielby, 2014;Dresser, 1982;Radoilska, 2012).…”

“…Post-print of article: Lucy Series, 'Relationships, autonomy and legal capacity: Mental capacity and support paradigms' (2015) 40 International Journal of Law and Psychiatry 80-91. enhance autonomous agency by binding our future selves; secondly, that interpersonal dynamics are a key element of self-determination, and we can deploy others to promote our own diachronic autonomy through "empowering kinds of reliance on others" (Radoilska, 2011, p. 266). Ulysses agreements do not necessarily require a person to be 'incompetent' in order to come into effect (Bielby, 2014). They can present "ethical hazards" because they require a person's presently expressed wishes to be overruled; for example Walton (2003) gives the example of birth plans that prohibit the administration of pain relief even if a woman in labour later requests it.…”

Opportunities and risks of self-binding directives: A qualitative study involving stakeholders and researchers in Germany

“…Researchers from psychiatry, law, medical ethics and philosophy have described several ethical opportunities and risks of SBDs from a theoretical point of view. They referred to an enhancement of the users' autonomy and well-being, the improvement of the therapeutic relationship and relationships with family members, the possibility of early interventions and a relief for substitute decision-makers as benefits of SBDs (3,4,(11)(12)(13)(14)(15). On the other hand, they discussed ethical risks of SBDs related to self-paternalism, increased susceptibility to undue influence, an increased use of coercion, the impossibility of changing one's own opinion and expired consent (16)(17)(18)(19).…”