Seminar: Decision-making capacity in patients with mental disorders

TUESDAY 1 NOVEMBER 2016, 16.00.

Seminar Room, 3rd Floor, Weston Education Centre, Cutcombe Rd SE5 9RJ

Professor Jochen Vollman will speak on “Decision-making capacity in patients with mental disorders”

Professor Vollman is a psychiatrist and medical ethicist. He is Professor and Director of the Institute for Medical Ethics and History of Medicine at Ruhr University Bochum. He is also President of the Centre for Medical Ethics, Bochum.

All are welcome. If you plan to attend please email Felix Warnock to give him an idea of numbers for catering.


On the classic model of competence, decision-making capacity is a requirement for informed consent. If a patient is found competent, he has the right to make her own treatment decisions. If a patient is found incompetent, treatment decisions must be based on an advance directive or made by a proxy employing the substituted judgment or best interest standard (Buchanan and Brock 1989; Grisso and Appelbaum 1998; Kim 2010). The MacArthur Competence Assessment Tool – Treatment (MacCAT-T) developed by Grisso and Appelbaum is acknowledged as the theoretical gold standard for competence assessment.

Although the laws of most jurisdictions conform to the classic model, this model is rejected by the United Nations Convention on the Rights of People with Disabilities (UN-CRPD). While the concept of disability employed in the convention includes mental or psycho-social disabilities (art. 1), article 12 of the UN-CRPD states that “States parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.” The Committee on the Rights of People with Disabilities (the Committee) interprets this article as saying that a person’s legal capacity does not depend on the person’s psychological decision-making abilities: “All people, including persons with disabilities, have legal standing and legal agency simply by virtue of being human” (CRPD/C/GC/1, §14, cf. §8). On this interpretation, then, the UN-CRPD prohibits competence assessment and substitute decision-making.

The UN-CRPD central concern is to counteract discrimination of persons with disabilities (UN-CPRD, art. 2). Sharing this concern, we will investigate whether the classic model of competence is discriminatory. Starting from a widely accepted definition of discrimination (Altman 2015), we argue that it is not discriminatory to assess mental competence and to allocate decision-making authority accordingly. Yet this holds true only if medical professionals bear in mind that (1) incompetence cannot and should not be inferred from status attributes (e.g. from the patient’s diagnostic status) and that (2) incompetence is decision-relative and temporal and thus itself is not a status attribute.

However, the Committee rejects even such a functional approach to competence because “it is discriminatorily applied to people with disabilities” (CRPD/C/GC/1, §15). Conceding that persons suffering from dementia, psychotic disorders or mood disorders are more likely to become subject to competence assessments, we argue that this does not constitute discrimination. Our reasoning is based on the following considerations. Firstly, unlike in many other forms of discrimination, there exists a causal relation between these disorders and impaired decision-making capacity that is not mediated by discriminatory social practices. Secondly, the test material of MacCAT-T consists of the disclosure information for the consent procedure. In view of this, competence assessments can be seen as providing decision-support, and this support can in turn be seen as a benefit accruing to the patient. We close by giving some practical recommendations as to how discrimination can be avoided in everyday health care contexts.


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