July 4 juillet 13:45 – 17:45
(extended session)
Room
NCDH–200
Chair:
Joseph Nuss
,
Cour d’appel du Québec
Our discussion focuses on the ethical grounds of the
assessment of competence (or capacity) from two perspectives, viz., theoretical
and applied. From the theoretical perspective, we discuss two leading bioethical
theories on competence, viz., those of Buchanan and Brock (1987) and Culver
and Gert (1990), together with the recent modification of the latter by Gert,
Culver and Clouser (1997). Essentially, the two basic theories differ as to the
source of decision-making authority and the grounds of justifiable paternalistic
interference–the competence of persons and the rationality of decisions,
respectively. In result, both theories provide an account of the relation
between autonomy (or self-determination) and well-being (or beneficence).
However, neither theory is effective in protecting conceptions of autonomy or
well being essential to a definition of persons with fundamental interests in
devising and following life plans that they determine. From the applied
perspective, we apply our previous discussion to an analysis of two instruments
for the assessment of competence: a structured instrument outlined and defended
by Grisso and Appelbaum (1998), and an unstructured or semi-structured
instrument used by assessors or evaluators in Ontario (“Guidelines for the
Assessment of Capacity”, 1996). Neither instrument properly accounts for the
ethical grounding of their instruments–the relation between autonomy and well
being in an acceptable account of decision-making authority. Nor is there any
recognition that the selection of instruments itself involves ethical choice. It
is concluded that an expansive view of decision-making or choice
is required in order to begin to accommodate the role of cognition,
affect and volition in an acceptable account of competence and its assessment.
How often do we deeply reflect about what or whom the laws serve? In particular, what does legislation about surrogate decision making and the institutions implementing and administrating them tell us about ourselves, our neighbours, and the boundaries of our social expectations and entitlements? Such concerns aim at the heart of the individual and at the social values which permeate our lives. To a greater extent than is cursorily thought, these values and their institutional embodiment define and mediate our life experiences. This core insight and the far-reaching implications that stem from it are discussed in light of the normative commitments of the reigning orthodoxy and competing heterodoxy of ethics of substitute decision making. Clinical cases and reference to current health law governing surrogate (and interchangeably, substitute) decision making in Canada and the United States ground the practical implications of the ethics of substitute decision making. For the purposes of this paper, the term “surrogate decision making” covers choice of a place of residence, choice of medical treatment, durable power of attorney for health care and guardianship for personal care as important species of decision making with which others may be entitled to assistance, including the important advocacy functions entailed by serving the autonomy, well-being and value of those persons. Of particular methodological importance is the identification and thematic development of four markers of normative commitment animating the orthodox view of substitute decision making (SDM) and current health law to a comprehensive critical analysis of the ethics of SDM. These four markers are: conceptions of personhood and personal identity; notions of personal autonomy and/or decisional authority in relation to personal well-being; difficulties associated with competence determinations, especially at the margins of autonomy; and the moral salience of personal, familial and community and family values in SDM in light of the claims others have to our assistance with their care. The heterodox view of SDM, incorporating insights from contextualist and constructionist modes of reasoning into the evaluation of the orthodox view and the implementation of health law concerning SDM, offers a basis for a critical ethics of SDM along the four markers of normative commitment. While clearly motivated by the efficacy of certain normative approaches and itself embodying one, this argumentative strategy calls on its audience to work through the moral and political/public policy value issues as they appear within their particular professional and personal contexts. That is, the degree of persuasiveness and conclusiveness of the critical perspective argued for here is intimately connected to individual and group reflection on, engagement with, and ongoing contribution to articulating a critical ethics of substitute decision making in everyday life.
This presentation provides a detailed theoretical and
case-based analysis of our view (elaborated by Bill Harvey) that leading
theories of competence
(or decision-making capacity), together with medico-legal
practices of competence assessment, fail to protect adequate conceptions
of personal autonomy and well-being. I develop a typology of the causal social construction of mental incompetence
involving five different forms (1) iatrogenic/critogenic construction; (2) psychosocial
construction; (3) formative
construction; (4) prejudicial construction; and (5) socioeconomic construction. This typology
helps distinguish and clarify some of the main ways that a person’s condition and/or
inaccurate label of (in)competence
may be socially constructed. Within this typology I argue
that when (in)competence is properly understood to be socially
constructed in a
causal sense, there are a number of indications that women–especially elderly women, women with
disabilities and women in particular socioeconomic positions–may be more likely than men to be (a)
assessed for
competence and (b) judged to be incompetent. I illustrate my
theoretical analysis with “real life” case examples, focusing on the recent case Koch (Re) (1997), heard in the
Ontario Court General Division. I conclude that resisting the
medico-legalization of decision-making
is morally and politically necessary. To better protect persons’ autonomy, agency and
well-being, we ought not to focus on labelling them “incompetent” and making their decisions for
them (via substitute/surrogate
decision-making), but rather on working to provide that which they need to make their decisions
and direct their lives. I
maintain that, toward demedicalizing decision-making, we ought to rethink
informal capacity assessment in health contexts. Linking with Lorraine
Landry
‘s critical ethics of surrogate decision-making, I propose a model of supported decision-making and suggest we
focus our attention on providing
the resources and supports persons need for competent decision-making and the exercise of
competently-made decisions. I provide objectives and recommendations for research, education, policy
and practice.
For decades the issues about competence and the capacity of medical decision making have kept us puzzled. The search for a general instrument to assess competence has been a central issue in practical and theoretical debates. Several options have been developed, however, each with its own problems. Two major critical points can be made, namely, that most methods have an exclusively cognitive character and that most of them have a hypothetical character. This hypothetical character is problematic: one can assume that making an hypothetical decision will probably have a different effect than making an actual decision. In this study the central question focuses on how competence is influenced by cognitive factors and other factors that have proved important in practice (i.e. emotive and motivational factors, personal values, etc). The effect of assessing competence under different circumstances is also evaluated. A clinical vignette was used to assess competence. This method is performed under two different circumstances: a realistic and a hypothetical situation. Several structured questionnaires were used to evaluate the factors described above. An age stratified sample (>65 years) of 150 elderly people was selected from geriatric day centers. They represent a range of cognitive states from moderate cognitive decline (MMSE >15) to normal cognitive function. The results of the study are discussed with respect to the effect of the above mentioned factors on competence and the effect of assessing competence in both hypothetical and realistic situations.
A Parliamentary Committee from NSW, Australia has been examining the State’s two institutions which manage financial and lifestyle decisions for persons who are unable to perform these functions themselves. While the Committee has found, that by world standards, the NSW system is extremely robust in terms of equitable coverage for all who require it, the move away from a system of appointment of individual guardians to government run agencies has also introduced a greater distance between the substitute decision maker and the protected person.
It can be distressing for clients to deal with their guardians primarily by phone and with a seemingly ever changing array of case officers. Less direct regular contact with clients also means that there is a danger of the substitute decision maker acting less like an advocate and more like an arbitrary decision maker. Agencies also have their own internal policies which may override the wishes of an individual.
Ideally, there should be as much transparency concerning the reasons for decisions in such a system as possible. However, currently in NSW appeal is only available by way of the NSW Supreme Court, an expensive and difficult pathway. This has lead many clients and their families to perceive both government agencies as “secretive” and “unaccountable”. Such an appeal process also offers the agencies themselves little protection from such attack due to secrecy provisions which strictly bind them.
This paper reviews the multiple institutional players that comprise Victoria’s interlocked network of laws, institutions, advocacy and adjudicative bodies catering to vulnerable populations, such as the mentally ill, the intellectually disadvantaged and adults who have lost the power to manage their personal or property affairs. With a particular focus on the work of the Intellectual Disability Review Panel (IDRP), which hears appeals about denial of services or imposition of ‘restraint and seclusion’ penalties, this paper reviews the merits, or otherwise, of retaining such a specialist body. It is argued that access to a specialist merits review of both questions, despite arguments that this is a crude or inefficient way of handling such questions. The ‘division of labour’ rationale for retaining a variety of specialized tribunals and other bodies, each with its particular functions, is analyzed against the competing pressures to down-size government, adopt quality assurance management and market models of program regulation. It is concluded that the unique features of ‘open-grained’ flexible adjudication adopted by the IDRP–and the division of specialised functions of the mental health, guardianship and system of which it forms part–is a harbinger of the type of arbitral laws needed to accommodate the more complex, more heterogeneous and more flexible needs of ‘post-modern’ society. Offering a better reading of social plurality and diversity.
This paper draws on work conducted with Nigel Eastman for the Department of Health, UK, as part of its programme of research examining the operation of the Mental Health Act 1983. The paper presents findings from a study of decision-making involving 108 consultant psychiatrists, approved social workers and second opinion appointed doctors. Participants were presented with one of three ‘everyday’ hypothetical cases (whether to admit a patient to hospital, to discharge a patient from hospital or to give treatment against the wishes of the patient) and asked to reach decisions both individually and as a professional pair. The information provided included extensive case notes and video material. The participants were subsequently questioned about their decision strategies and their understanding of the relevant applicable law. The study provides some insight into the limited applicability of law in the arena of ethical and clinical decision-making.
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