Commentary on "True Wishes"

Not too long after I came to the Hastings Center, I was asked to give a talk on competency. No problem, I thought. Plugging into the wealth of reference materials in the Center's library, however, I could find nothing—literally nothing—on the topic of competency. This was perplexing because many of the conversations, formal and informal, that took place around the Center's great conference table (which doubled as the lunch table) dealt with problems about competency. Then I was inspired: I began looking under in competency. Voila! I found a wealth of material.

The lesson I drew from this experience was a valuable one, I think. Physicians and families do not worry much about whether a patient is competent or not to make a decision; they worry when the patient disagrees with the decision they think is proper, at which time they want to declare the patient incompetent.

In their article about children's (primarily adolescents') refusal of medical treatments, Dickenson and Jones note a similar asymmetry of interest. People are not inclined to think much about cases in which adolescents consent to the treatments recommended by their physicians and agreed to by their parents or guardians. The rub comes when adolescents disagree with those recommendations. How should we think about the moral, psychological, and health significance of such decisions? What legal practices and public policies are most likely to advance what we believe to be right and good?

The cases described by Dickenson and Jones do not strike the best balance between respecting the choices of adolescent patients and protecting their well-being. To say that adolescents are not always wise, experienced, or clever enough to choose the course of action that best advances their interests is not to say that their decisions are always wrong. To say that under certain circumstances the wishes of adolescents ought to give way to others' judgment is not to say that all differences of opinion should be resolved by ignoring the adolescents' views. When courts categorically refuse to consider the wishes of adolescents whose views about treatment differ from the views of those in authority over them, such decisions cannot be justified either by philosophical concepts such as rationality, personal identity, or autonomy, or by developmental psychology. As a group, adolescents may lack some of the marks of maturity that lead us to respect the free and informed decisions of adults. But the differences are matters of degree, not kind. And many adolescents are the equals, if not the superiors, of many adults in their capacities for judgment.

Dickenson and Jones do a service by showing how faulty philosophical analyses of this topic are interwoven with bad principles and flawed judicial reasoning. Their call is a moderate and reasonable one. They want the courts to embrace a more nuanced understanding of adolescents' decision making on medical matters. They do not argue that children's wishes—true or not—should be given precedence in every instance over solidly grounded judgments about what is in the individual child's best interest. Instead, the thrust of their philosophical and psychological analysis is that a sharp categorical distinction cannot be sustained: Many older children (adolescents at least) are not radically different from adults and therefore deserve respectful moral consideration for their deeply held wishes about medical treatment.

If this eminently sensible conclusion is to be attacked, it must be on other grounds. Defenders of a strong categorical distinction might argue that such nuanced judgments in particular cases are simply too difficult to implement in practice. Public policy, therefore, must insist on a straight-forward distinction between those whose decisions must be respected and those whose decisions do not count, placing children—including adolescents—in the latter class. Many responses to this argument are possible. I will mention only two. First, we can point to the multitude of cases in which such nuanced decisions can and must be made about adults whose capacity to make free, informed, and rational choices is in doubt. Think of the many instances of diminished cognitive capacities caused by mental illness, mental retardation, and organic dementias. We...