Intuition, Self-Reflection, and Individual Choice: Considerations for Proposed Changes to Criteria for Decisional Capacity

Liberal societies are built on a foundation of personal rights, including the right to make decisions about the medical treatment that one will receive or decline to receive. So essential to the liberal project is the power of individual choice that it will be abrogated only in the most extreme situations, in which persons seem to be unable to make rational decisions and thereby to protect their interests. A small number of decision-related abilities have been identified as relevant to the determination of when a person will be deemed decisionally incapable: understanding, appreciation, reasoning, and choice (Appelbaum, 2007). It would seem prudent to tinker with these standards cautiously—if at all.

In contrast with the law’s focus on the protection of individual rights, the concern of cognitive psychology has been to elucidate the mechanisms by which decisions are made. Psychological models of decision making have long included many more components that the four typically embodied in legal standards of capacity (Janis & Mann, 1997). Periodically, suggestions are made to modify the dominant legal standards to reflect one or another of these additional components. As a fascinating, but not unchallenged (Evans & Stanovich, 2013), body of research has developed suggesting the existence of two modes of processing information and reaching decisions—“thinking fast and slow,” in the words of a bestselling account by one of the leading researchers in this area (Kahneman, 2011)—it is not surprising to see suggestions arise for taking this new knowledge into account in our conceptualization of decisional capacity. Thus, Hermann et al.’s (2017) intelligent and thoughtful proposal that one of the traditional, cognitively oriented capacity criteria—the ability to reason—be augmented by consideration of intuitive decision processes.

How might we decide whether to pursue their suggestion that the reasoning criterion be reformulated as “the ability to self-reflect in the face of a particular decision?” I submit that at least four considerations are material: 1) the conceptual coherence of the proposed criterion, 2) the practical need for the change, 3) the performance of the new criterion, and 4) the consequences of adding the criterion. On each of these bases, as I indicate below, there is reason to be skeptical of the proposal from Hermann et al. (2017).

Conceptually, the proposal derives from psychological research indicating that intuitive processes—not subject to conscious access or control—often drive decisions. In some sense, this idea is familiar from psychoanalytic theory, although in place of psychoanalysis’s drives and conflicts, cognitive psychologists postulate unconscious heuristics (Gilovich, Griffin, & Kahneman, 2002) or bodily sensations that integrate past experiences (Damasio, 1994). (One of the problems with assessing research in this area is that there are multiple, likely incompatible models of “dual processing”, i.e., the term means different things to different researchers; Evans & Stanovich, 2013). Whatever the mechanism, the defining characteristic of such processes is that they are not accessible to conscious awareness. Given that many clearly competent people make decisions intuitively, Hermann et al. argue that it seems fair to consider intuitive processes in assessing their capacity.

However, there is a problem. How does one assess processes that by definition are not available to conscious thought? We cannot simply accept the assertion of the person being evaluated that the decision was intuitive (e.g., “I just had a feeling that this was the right decision”), because although some intuitions may accurately reflect past experiences and current preferences, others may be based on grounds that are generally accepted as indicating incapacity, for example, a delusional conviction that the treatment recommendation is motivated by the doctor’s malevolent intent. Given that both bases for an intuitive judgment are unconscious—that is, persons will not be aware of why they made the decisions that they did—how can those very different situations be distinguished? Hermann et al. (2017, p. 320) propose that the evaluating physician determine if the patient “is able to participate actively in a reflective process to concretize her intuitions, giving meaning to gut feelings in light of her explicit self-knowledge and the specific situation...