Conceptualization or Assessment: One at a Time or Both?

I am very grateful to Toby Williamson and Ajit Shah for their insightful commentaries on my paper on mental competence. By linking their commentaries to the Mental Capacity Act of 2005, they both reflect a strong embeddedness in clinical practice, which I very much appreciate. Both authors seem, more or less, to agree on the need for an anthropological conceptualization of mental competence beyond a rather “mechanistic decision-making ability.” However, they do disagree on the pace (Williamson) and direction (Shah) of my approach. I, therefore, use this opportunity to clarify some issues that were raised by my approach to mental competence, rather than discussing again the need for an anthropological approach. These issues are mental capacity as negative freedom, the patient–physician relationship, and the assessment of decision-making capacity in relation to the determination of best interests.

Mental Capacity as Negative Freedom

This issue was raised by Toby Williamson, questioning whether the current conceptualization of mental competence as decision making ability need to be rooted in a concept of negative freedom. I fully agree with Williamson that this is not necessarily the case. He also argues—and rightly so, I think—that the conceptualization of mental competence as “mechanistic decision-making ability” does not necessarily reflect reality. I fully agree with Williamson and I think that there is a disparity here between the clinical world and the bioethical literature. In the latter, the prevailing conceptualization of capacity is still rather “thin,” with an emphasis on freedom from interference. Except for the third criterion in Appelbaum and Grisso’s (1988) well-known framework (“the capacity to appreciate one’s own situation”), their conceptualization does not contain any reference to the patient’s own life. So, even though the current conceptualization does not necessarily need to be rooted in a concept of negative freedom, in the literature it mostly is. This is further reinforced by the recent development of quantitative tools for the assessment of mental competence, which are based on this same body of literature (see, e.g., Sturman 2005 and Moye et al. 2006 for an overview and critical discussion). My concern is that this focus on “objectivity” overlooks the question of what it is that we are actually looking for. Partly because of the focus on “objectivity,” these tools seem to focus on as “thin” an interpretation of mental competence as possible, reducing mental competence to this rather mechanistic decision-making capacity. At present, these instruments should therefore still be seen as supplemental resources rather than benchmarks for assessment (Moye et al. 2006). Fortunately, this is recognized by most clinicians as well. To bridge this gap between the bioethical literature and clinical practice, I would welcome any interaction between the sometimes too theoretically oriented scholars (be they ethicists or clinical researchers developing tools) and the more practical clinicians to exchange information on how to shape ethical notions in daily clinical practice. I think the implementation of the Mental Capacity Act of 2005 is a good example of how to leave open the possibility for a “thicker” notion of mental competence (ability to design one’s life), without falling into the paternalistic trap.

The Patient–Physician Relationship

Williamson expresses his concern about the nature of the patient–physician relationship. I think Williamson and I agree on many points. I see my description of the patient–physician relationship as an ideal, something to strive for. At the same time, I agree with Williamson that this ideal is sometimes far from reality, so in that sense my phrasing in the original paper might indeed have been somewhat too optimistic. However, the stereotype of the physician deeming any “unwise” decision a proof of incompetence is also a caricature. (Note that the latter is not the picture that Williamson presents; his response is indeed very subtle and nuanced.) Empirical studies show that physicians and professionals concerned with the daily care of patients are generally less inclined to assess a patient’s competence negatively than family members (Cf. Biesaart and Hubben 1999; Kim et al. 2001; Vellinga et al. 2004). Vellinga et al., who studied the assessment of...