Authenticity, Insight, and Impaired Decision-Making Capacity in Acquired Brain Injury

Thanks to Barton Palmer and John McMillan for these thoughtful commentaries. We found much to agree with and it is striking how so many of the issues relating to decision-making capacity (DMC) assessment find resonances outside of an English jurisdiction. California and New Zealand are clearly grappling with a very similar set of issues and the commentaries speak to the international nature of these discussions.

We will pick up on some main points the commentaries raise.

Authenticity

As Palmer notes, DMC law is vulnerable to the criticism that it does not attend to the authenticity of a decision. In ordinary language, this is the idea that someone is deciding while “not their self” or that it is the “illness speaking.” There is a tradition of connecting personal autonomy with authenticity in both philosophy and in law. Frankfurt (1971), Dworkin (1976), and Christman (2009) all do this in different ways in their philosophical writing, and the English Law Commission started off its consultations on mental capacity by considering the category of “true choice” (The Law Commission, 1995). For good or for bad, the explicit use of authenticity has been avoided by law because of concerns it is vulnerable to idiosyncratic or inconsistent interpretation. How would one know—and reliably demonstrate—that a choice was “true”? Unconvinced that we have a practicable answer, Law has put weight on decision-making abilities. Critics have objected that this makes the test “too cognitive” or naively committed to “value neutrality” (Charland, 2011). However, tests of DMC are agnostic about the psychological modality of the abilities—for example, whether they are cognitive, emotional, related to will, and so on—with courts given quite a margin to interpret the abilities case by case. In addition, any commitment to “value neutrality” could be reframed as a commitment to value pluralism—especially if “true choice” is considered at risk of collapsing to “assessor’s choice.” In a similar vein, DMC dovetails better with certain liberal commitments than requiring authenticity—the latter is at least sometimes interpreted to be so exacting a standard that few will ever meet it, and, hence, making respect for basic rights depend on authenticity would mean that such respect would be available only to the few, whereas the commitment of liberal democracy is that it should be available to the many and withholding it should be exceptional.

Most legal and ethical tests of DMC involve recognition of understanding and communicating abilities and a second set of decision-making abilities that fall into categories of evaluation and deliberation. A central problem facing tests of DMC is adequate specification of the second set. Some clinicians understand the later as ‘insight,’ but whatever correlations exist, insight is a clinical construct and law will need less clinically centric variables. The English Mental Capacity Act uses the concepts of ability to “use” and “weigh.” Before this, English case law referred to ability to “believe” (Re C, 1994). In U.S. jurisdictions, the form “appreciate” and “reason” is often given (Berg, Appelbaum, & Grisso, 1996). In Scotland it is ability to “act” and “decide” (Adults with Incapacity [Scotland] Act, 2000).

Our purpose in the study was to select cases where we could learn about what these evaluative or deliberative abilities were by letting patients themselves show us within interview. We selected brain injury because in this group we can find model examples of people whose understanding and communication abilities are not in doubt, but where concerns are often expressed about decision making.

The ability to have online awareness in a decision-making situation we think is shown by these patients as a condition on the possibility of DMC. We think it can be satisfactorily interpreted—in Mental Capacity Act terms—as an ability to use relevant information in the process of deciding and have given some guidance to practitioners on how to do so (Owen, Freyenhagen, Martin, & David, 2015). Our aim has been to help the law interpret abilities by drawing on cases where illumination is most likely to be found. We have...