Aligning the “single law” proposal to the CRPD standard of “will and preferences”

Abstract

Galderisi et al¹ provide an excellent overview of the complex ethical challenges in psychiatry. We subscribe to the authors’ criticism of mental health laws employing a “disorder + risk” schema for involuntary intervention, and their conclusion that these laws discriminate against people with a mental health condition. The authors put forward instead a “single law” proposal in which “involuntary treatment would only be permitted when the objecting person has an impairment of decision-making ability – from any cause – and if treatment is in the person's best interests”¹. We strongly endorse the core of this proposal, but would like to suggest three refinements to it.

First, we propose combining capacity assessment with supported decision-making, to ensure that no one is found to lack decision-making capacity before all reasonably available resources of supported decision-making have been exhausted. Second, we propose replacing the best interests standard by the substituted judgment standard, to achieve a closer alignment of substitute decisions with the will and preferences of the person concerned. Third, we suggest to explicitly define additional criteria for involuntary intervention, to avoid what we will call “the fallacious inference from substitute decision-making to coercion”. The proposed refinements are based on what we call the “combined supported decision-making model”, a model for the informed consent process that provides a non-discriminatory basis for decision-making about involuntary intervention^2-5. In this commentary, we focus on the last two refinements.

Galderisi et al refer to a terminological distinction used in a judgment of the German Federal Constitutional Court to show that the “single law” proposal is consistent with the general principles of the United Nations (UN) Convention on the Rights of People with Disabilities (CRPD) and the wording of Article 12, particularly its insistence that “measures relating to the exercise of legal capacity respect the rights, will and preferences of the person”. The terminological distinction is between “free will” (freier Wille) and “natural will” (natürlicher Wille), which, according to the authors, maps on to the CRPD's distinction between “will” and “preferences”.

This terminological distinction plays an important role in the legal discourse around the German guardianship law (Betreuungsrecht), which is part of the German Civil Code and applies to all people who need support in managing their own affairs, regardless of whether they have a mental health condition⁶. The term “free will” (freier Wille) refers to the contemporaneous preferences of a person who possesses decision-making capacity regarding the decision at hand. Expressions of a person's free will must be respected by clinicians and have the status of consent or withdrawal of consent; that is, they can make interventions permissible which would otherwise be not permissible and vice versa. The term “natural will” (natürlicher Wille), on the other hand, refers to the contemporaneous preferences of a person who lacks decision-making capacity regarding the decision at hand. Expressions of a person's natural will must be carefully considered in medical decision-making but can, in some instances, be overridden based on other considerations, to be specified below. They amount to what is commonly described as “assent” and “dissent” in the research ethics literature. Any medical intervention against a person's natural will (i.e., any medical intervention to which the person dissents) counts as “coercive medical treatment” (ärztliche Zwangsmaßnahme) under German guardianship law and is hence subject to strict conditions.

Galderisi et al propose that expressions of a person's natural will can only be overridden if doing so is in the person's best interests. Although the authors make clear that the standard of best interests should be interpreted subjectively in terms of the person's beliefs and values, we are concerned that it will nonetheless be understood objectively in clinical practice. The best interests standard originally derives from a paternalistic “doctor knows best” approach and – despite the authors’ careful qualifications – may be understood by clinicians in the light of what Hawkins⁷ calls “welfare medicalism”, the persistent idea among clinicians that what is in a person's best interests is what is medically indicated in the person's situation. To avoid this potential misunderstanding, we propose replacing the best interests standard by the substituted judgment standard. This latter standard gives center stage to the person's will and preferences: it assigns to the substitute decision-maker the task of making the treatment decision that the person would have made if he/she had had decision-making capacity⁸.

German guardianship law employs a substituted judgment standard and requires that substitute decisions be justified by reference to concrete evidence about the person's will and preferences⁶. The law introduces two additional concepts in this context. The first is that of the person's “previously declared will” (vorausverfügter Wille), denoting the preferences that a person has documented in an advance directive at a time at which he/she had decision-making capacity. Advance directives are legally binding under the German Civil Code and apply to both physical and mental health conditions. The second concept is that of the person's “presumed will” (mutmaßlicher Wille), denoting the preferences of a person which can be reconstructed based on the preferences and personal values and convictions that he/she expressed when he/she had decision-making capacity. In accord with the substituted judgment approach, the person's previously declared or presumed will serves as a proxy for the person's free will.

Consistency with the person's previously declared or presumed will is a necessary condition for the permissibility of involuntary treatment under German guardianship law. This means that, if this consistency is not ascertained, involuntary treatment may not be carried out – even if withholding treatment is not in the objective best interests of the person. All references to the term “well-being” (Wohl) were omitted from the guardianship law during the latest reform to underline this, even though the term was understood subjectively before the reform⁶.

We now turn to the fallacious inference from substituted decision-making to coercion. It is often assumed that, if a medical intervention is consistent with the person's previously declared or presumed will, that intervention may be carried out involuntarily against the person's natural will. This inference is invalid. The reason is that consistency with the person's previously declared or presumed will is a necessary but not sufficient condition for the permissibility of involuntary intervention.

While Galderisi et al in no way make the fallacious inference from substituted decision-making to coercion, we believe that it is important to make explicit and emphasize that additional criteria must be fulfilled for an involuntary intervention to be justified. Besides being consistent with the person's previously declared or presumed will, an involuntary intervention must also be suitable, necessary and proportionate in order to be permissible⁹. An involuntary intervention is suitable if it is effective in preventing the person from behaving in ways that are inconsistent with his/her previously declared or presumed will. It is necessary if there are no less restrictive alternatives to prevent the person from behaving in these ways. It is proportionate if its risk-benefit profile is more favorable than that of the option of not carrying out the intervention. Only if these three criteria are met may the person's previously declared or presumed will be prioritized over his/her natural will, and the involuntary intervention be carried out. If any of these three conditions is not met, involuntary intervention is not permissible and the person's natural will or contemporaneous preferences must be followed.

Implementation of the “single law” proposal would be a major step forward for psychiatry. We believe that the proposal can be brought into closer alignment with the CRPD's standard of “will and preferences” if capacity assessment is combined with supported decision-making; the best interests standard is replaced by the substituted judgment standard; and the proposed additional criteria for involuntary intervention are explicitly added.