Acquired Brain Injury, Mental Illness, and the Subtleties of Competence Assessment

Owen, Freyenhagen, and Martin should be lauded for bringing the complexities of competence assessment and acquired brain injury (ABI) to light. This discussion is often a difficult and vexed exercise for an array of conditions including ABI, and is usually a judgment that is critically important for determining whether or not a patient has the right to make their own decisions. There are a number of themes in their article that chime with ideas developed by Fulford (1989) about the nature of illness, and I suggest that, in addition to teasing out some subtleties of competence assessment, they have also explained, in a phenomenologically grounded way, why it is that we should consider ABI an illness.

Abilities as Fundamental to Decision-Making Capacity

Tests of competence such as those of the Mental Capacity Act (Department of Health, 2005) and McCat-T tend to converge on rather broad categories of cognitive ability, such as understanding, and the ability to weigh in the balance and appreciate (Grisso & Appelbaum, 1998). Unpacking these categories for specific patient groups via qualitative interviews is an elegant and helpful way to deepen our understanding of the condition itself as well as the abilities that are relevant to decision-making capacity.

The concept of ‘competence,’ in a general sense, is a judgment about whether or not someone has the abilities relevant to a task and at an appropriate level. So, in asking whether a driver is competent, we are in effect asking whether they have the relevant skills; things such as being attentive to road conditions, other users, and whether they have that skill at an appropriate level. In this case, the relevance sense of what the person is competent to do, is to drive. The fine-grained diminished abilities that the authors found for those with ABI clearly are relevant to problems that they might have with how they live: A number of the people spoken to describe how, after the case, they acted in ways that they now regret.

The authors do a good job in showing how such impairments might be linked back to competence to make medical decisions: For example, ABI4 thought that he was ready to go home. However, he found that he could not, because of the extent to which he was relying on his present environment to organize himself, do what he expected they would be able to once his environment changed. The authors are correct that decision-making capacity tends to be viewed as a cognitive test and it is clear that knowledge about what one can in fact do in the world is missed from it. Moreover, this seems relevant to having a diminished ability to make good decisions for oneself. However, impairments such as ABI4’s illustrate the importance of engagement with the world for mental life, and are also relevant to concepts such as agency, living well, and illness.

Action Failure

In Austinian fashion, Fulford argues that at the core of our concept of illness is action failure. By this he means both the way in which illness can render us unable to perform both ordinary, ‘everyday doings’ and also ‘functional doings.’ ‘Illness’ can thereby be shown to be distinct from and, according to Fulford, logically prior to ‘disease.’ For example, it would be possible to give a complete and useful account of the way in which a hip joint is ‘diseased’ in terms of the impact of rheumatoid arthritis upon it. However, we could also pay attention to the pain and lack of mobility that the same hip joint produces; the ways in which the hip joint makes it difficult for that person to act. In doing so we would, pace Fulford, be giving an account of how the diseased hip joint makes the patient unwell.

It is striking how the everyday and functional activities of the patients the authors spoke with demonstrate how what they retrospectively think they should have done is not what they were able to do at the time. For example, ABI2 has metacognition: He is...