An Externalist, Process-Based Approach to Supported Decision-Making.

Abstract

of avoiding the death and disability that will result from the risky choice rather than the converse. And the courts remain the ultimate arbiter of whether the degree of capacity being required is reasonable in light of the choice being made. We note that a corollary of this approach is that less stringent levels of capacity will be required for inherently less risky choices, such as the decision to accept an intervention that is likely to carry little risk and to offer clear benefit. As an example, the American Psychiatric Association has supported a less stringent test of decision-making competence when a person with a mental illness is deciding to enter a hospital voluntarily for psychiatric treatment, an action that (assuming psychiatric concurrence) is highly likely to be beneficial (APA 1992). Finally, although not directly relevant to Pickering and colleagues’ argument, we cannot help but note that the judgment in C’s case that found her competent appears to have overlooked a serious deficiency in her ability to appreciate (or “weigh” in British terms) the nature of her situation. The information she received, though it may have been conveyed with varying degrees of optimism, seemed to have consistently emphasized the probabilistic nature of the possible outcomes of dialysis. It was certain neither that she would regain kidney function nor that she would not. The uncertainty of the outcome was precisely what she seemed unable to grasp, raising serious questions about her decisional competence, regardless of the degree of capacity required. DISCLOSURE STATEMENT