Decision-Making Capacity First published Tue Jan 15, 2008; substantive revision Fri Aug 14, 2020 In many Western jurisdictions the law presumes that adult persons, and sometimes children that meet certain criteria, are capable of making their own medical decisions; for example, consenting to a particular medical treatment, or consenting to participate in a research trial. But what exactly does it mean to say that a subject has or lacks the requisite capacity to decide? This question has to do with what (...) is commonly called “decisional capacity”, a central concept in health care law and ethics, and increasingly an independent topic of philosophical inquiry. -/- Decisional capacity can be defined as the ability of subjects to make their own medical decisions. Somewhat similar questions of capacity arise in other contexts, such as capacity to stand trial in a court of law and the ability to make decisions that relate to personal care and finances. However, the history behind the more general legal notions of capacity to stand trial and capacity to manage one’s life is different and operates somewhat differently in law (Roth, Meisel, & Litz 1977; Zapf & Roesch 2005). For the purposes of this discussion the notion of decisional capacity will be limited to medical contexts only; most notably, those where decisions to consent or to refuse treatment or participation in clinical research are concerned. (shrink)

In this article I explore various facets of Nozick’s famous thought experiment involving the experience machine. Nozick’s original target is hedonism—the view that the only intrinsic prudential value is pleasure. But the argument, if successful, undermines any experientialist theory, i.e. any theory that limits intrinsic prudential value to mental states. I first highlight problems arising from the way Nozick sets up the thought experiment. He asks us to imagine choosing whether or not to enter the machine and uses our choice (...) (or rather the choice he assumes most people will have) as evidence against experientialist theories. But for this strategy to succeed it must be possible to distinguish between self-interested and non-self-interested reasons for declining to enter the machine, and there is no obvious way to do this without begging the question against the hedonist. In successive sections I then (a) consider a common misconception of Nozick’s conclusion (that he thinks machine life is the worst life), (b) consider different intuitions about what is important to well-being but missing from machine life, and finally (c) explain what “the experience requirement” is, and describe its relationship to debates about experientialist theories. (shrink)

Philosophers concerned with what would be good for a person sometimes consider a person’s past desires. Indeed, some theorists have argued by appeal to past desires that it is in the best interests of certain dementia patients to die. I reject this conclusion. I consider three different ways one might appeal to a person’s past desires in arguing for conclusions about the good of such patients, finding flaws with each. Of the views I reject, the most interesting one is the (...) view that prudential value is, at least partly, concerned with the shape of a life as a whole. (shrink)

Desire is commonly spoken of as a state in which the desired object seems good, which apparently ascribes an evaluative element to desire. I offer a new defence of this old idea. As traditionally conceived, this view faces serious objections related to its way of characterizing desire's evaluative content. I develop an alternative conception of evaluative mental content which is plausible in its own right, allows the evaluative desire theorist to avoid the standard objections, and sheds interesting new light on (...) the idea of evaluative experience. (shrink)

This book was inspired originally by the debates at the turn of the century about placebo controlled trials of antiretrovirals in HIV positive pregnant women in developing countries. Moving forward from this one limited example, the book includes several additional controversial cases of clinical research conducted in developing countries, and asks probing philosophical questions about the ethics of such trials. All clinical research by its very nature uses people to acquire generalizable knowledge to help future people. But what sorts of (...) "use" are morally permissible? What is it to exploit people? Suppose that a trial conducted in a developing country would not be ethically permissible in the developed world. Can we automatically conclude from this that the trial is unethical, that some sort of morally problematic double standard is in operation? Or might the differences in the two settings justify differences in trial design? This collection of philosophical essays examines these important questions about what exploitation is and when clinical research counts as exploitative. -/- "This is an outstanding contribution to the growing literature on the ethics of research with human subjects and a fine example of what bioethics can offer at its best. Anyone with a serious interest in these issues will need to read this book from start to finish." -Daniel Wikler, Harvard School of Public Health "This book contributes significantly to the literature on exploitation in clinical research conducted in the developing world."--Patricia Marshall, Case Western Reserve University . (shrink)

Medical ethics would be better if people were taught to think more clearly about well-being or the concept of what is good for a person. Yet for a variety of reasons, bioethicists have generally paid little attention to this concept. Here, I argue, first, that focusing on general theories of welfare is not useful for practical medical ethics. I argue, second, for what I call the “theory-without-theories approach” to welfare in practical contexts. The first element of this approach is a (...) focus on examining important and relatively uncontroversial constituents of welfare as opposed to general theories. The second key element is a framework for thinking about choice in relation to welfare, a framework I refer to as “the mild objectivity framework.” I conclude with illustrations of the way in which the “theory without theories approach” can improve thinking in medicine. (shrink)

The dominant approach to assessing decision-making capacity in medicine focuses on determining the extent to which individuals possess certain core cognitive abilities. Critics have argued that this model delivers the wrong verdict in certain cases where patient values that are the product of mental disorder or disordered affective states undermine decision-making without undermining cognition. I argue for a re-conceptualization of what it is to possess the capacity to make medical treatment decisions. It is, I argue, the ability to track one’s (...) own personal interests at least as well as most people can. Using this idea, I demonstrate that it is possible to craft a solution for the problem cases—one that neither alters existing criteria in dangerous ways (e.g. does not open the door to various kinds of abuse) nor violates widely accepted ethical constraints on decision-making assessment. (shrink)

In her impressive book, looking at the philosophy and science of well-being, Anna Alexandrova argues for the strong claim that we possess no stable, unified concept of well-being. Instead, she thinks the word “well-being” only comes to have a specific meaning in particular contexts, and has a quite different meaning in different contexts. I take issue with (1) her claim that we do not possess a unified, all-things-considered concept of well-being as well as with (2) her failure to consider why (...) we might want a unified concept. I grant that Alexandrova is probably correct that the word “well-being” is used differently in different contexts. But this only shows that one word can come to be used to express different concepts. Moreover, noting that several concepts exist that are picked out by “well-being” doesn’t establish that we lack altogether a notion of all-things-considered well-being. I believe we have such a concept, even though it is not always the concept in play. Moreover, I think we need such a concept. The conceptual muddles Alexandrova highlights—muddles that result from a single word being used to express multiple ideas—remind us how important it is to be able to distinguish different concepts from one another, as well as how important it is to periodically remind ourselves of how various forms of specialist dialogue relate back to the broader, more general notion of “well-being.”. (shrink)

Existence internalism claims that facts about human psychological responsiveness constrain the metaphysics of value in particular ways. Chapter 5 examines whether some form of existence internalism holds for prudential value. It emphasizes the importance of a modal distinction that has been traditionally overlooked. Some facts about personal good are facts about realized good. For example, right now it may be true that X is good for me. Other facts about goodness are facts about what would be good for me in (...) certain possible futures. These are facts about merely possible good. Philosophers should be internalists about realized good. The chapter defends a qualified version of the idea that a necessary constraint on something’s being good for a person at a time is that the thing in question elicits some kind of positive psychological response from the person at that time. However, philosophers should be motivational externalists about merely possible good. Facts about the superior future goodness of an option may ground reasons now to choose it. But we should not expect individuals to always recognize such facts, and so there is no reason to think such facts are always motivating. (shrink)

Theories of well-being are typically divided into subjective and objective. Subjective theories are those which make facts about a person’s welfare depend on facts about her actual or hypothetical mental states. I am interested in what motivates this approach to the theory of welfare. The contemporary view is that subjectivism is devoted to honoring the evaluative perspective of the individual, but this is both a misleading account of the motivations behind subjectivism, and a vision that dooms subjective theories to failure. (...) I suggest that we need to revisit and reinstate certain features of traditional hedonism, in particular the idea that felt experience plays a role that no theory of welfare can afford to ignore. I then offer a sketch of a theory that is subjective in my preferred sense and avoids the worst sins of hedonism as well as the problems generated by the contemporary constraints of subjective theorists. (shrink)

Most philosophers these days assume that more matters for well-being than simply mental states. However, there is an important distinction that is routinely overlooked. When it is said that more matters than mental states, this could mean either that certain mind-independent events count when it comes to assessing the prudential value of a life (the mind-independent events thesis or MIE), or it could mean that it is prudentially important for individuals to have the right kind of epistemic relation to life (...) events (the positive value of knowledge thesis or PVK). This chapter first aims to convince theorists of the importance of the distinction between MIE and PVK, or, more precisely, the importance of distinguishing questions about which non-mental objects (or events or facts) have intrinsic welfare value (if any do) and questions about which epistemic relations (knowledge, justified true belief, true belief) have intrinsic welfare value (if any do). This chapter also raises serious doubts about the way in which contemporary desire theories handle the extra-mental components of welfare, and offers some tentative answers to the question: what should a theorist of welfare say about these matters? (shrink)

Desire satisfaction theorists and attitudinal-happiness theorists of well-being are committed to correcting the psychological attitudes upon which their theories are built. However, it is not often recognized that some of the attitudes in need of correction are evaluative attitudes. Moreover, it is hard to know how to correct for poor evaluative attitudes in ways that respect the traditional commitment to the authority of the individual subject's evaluative perspective. L. W. Sumner has proposed an autonomy-as-authenticity requirement to perform this task, but (...) this article argues that it cannot do the job. Sumner's proposal focuses on the social origins of our values and overlooks the deep psychological roots of other evaluative attitudes that are just as problematic for welfare. If subjective theories of welfare are to be at all plausible they may need to abandon or modify their traditional commitment to the authority of the individual subject. (shrink)

This chapter explores radical personal change and its relationship to well-being, welfare, or prudential value. Many theorists of welfare are committed to what is here called the future-based reasons view (FBR), which holds (1) that the best prudential choice in a situation is determined by which possible future has the greatest net welfare value for the subject and (2) what determines facts about future welfare are facts about the subject and the world at that future time. Although some cases of (...) radical change are intuitively prudentially good, many cases of really radical change are not. Yet FBR has trouble explaining this. Many people instinctively reach for the notion of identity to solve this problem—arguing that really radical change cannot be good because it alters who someone is. Yet, as the chapter argues, there are reasons to doubt that appeals to identity are appropriate. The chapter ends with the suggestion that prudential facts may explain why and when retaining identity matters, rather than the other way around, and points to a possible way forward for a theorist of welfare committed to FBR. (shrink)

Most adult persons with anorexia satisfy the existing criteria widely used to assess decision-making capacity, meaning that incapacity typically cannot be used to justify coercive intervention. After rejecting two other approaches to justification, Professor Radden concludes that it is most likely not possible to justify coercive medical intervention for persons with anorexia in liberal terms, though she leaves it open whether some other framework might succeed. I shall assume here that the standard approach to assessing decisionmaking capacity is adequate.1 The (...) question then is whether we can justify—within a liberal framework—coercive intervention with the decision of a competent... (shrink)

Commentators often claim that medical research subjects are coerced into participating in clinical studies. In recent years, such claims have appeared especially frequently in ethical discussions of research in developing countries. Medical research ethics is more important than ever as we move into the 21st century because worldwide the pharmaceutical industry has grown so much and shows no sign of slowing its growth. This means that more people are involved in medical research today than ever before, and in the future (...) even more will be involved. However, despite the pressing need for reflection on research ethics, it is important to carefully identify the concerns we have about research. Otherwise we run the risk that the moral language we use, and which we hear other people use, may do our moral thinking for us. We argue that many recent claims about the occurrence of coercion in medical research are misguided and misuse the word "coercion." We try to identify the real problems, and urge people to attend carefully to the implications of their descriptions of moral problems in research. (shrink)

: Bioethicists have articulated an ideal of shared decision making between physician and patient, but in doing so the role of clinical uncertainty has not been adequately confronted. In the face of uncertainty about the patient's prognosis and the best course of treatment, many physicians revert to a model of nondisclosure and nondiscussion, thus closing off opportunities for shared decision making. Empirical studies suggest that physicians find it more difficult to adhere to norms of disclosure in situations where there is (...) substantial uncertainty. They may be concerned that acknowledging their own uncertainty will undermine patient trust and create additional confusion and anxiety for the patient. We argue, in contrast, that effective disclosure will protect patient trust in the long run and that patients can manage information about uncertainty. In situations where there is substantial uncertainty, extra vigilance is required to ensure that patients are given the tools and information they need to participate in cooperative decision making about their care. (shrink)

I consider the current best interests of patients who were once thought to be either completely unaware (to be in PVS) or only minimally aware (MCS), but who, because of advanced fMRI studies, we now suspect have much more “going on” inside their minds, despite no ability to communicate with the world. My goal in this chapter is twofold: (1) to set out and defend a framework that I think should always guide thinking about the best interests of highly cognitively (...) compromised patients, and then (2) to defend a particular conclusion that applies to this specific patient population. The framework requires us to ask two questions: Is the individual suffering? Is the individual gaining any benefit from life? There must be benefit of some sort for life to be worth preserving, and the benefit must outweigh any suffering (if there is suffering present). I then argue it would be best overall to allow these patients to die. Either these patients are not really very aware at all, in which case they are most likely not suffering, but not benefiting from life either, or they are mentally intact enough to make benefit a theoretical possibility, but in fact they are not benefiting because they cannot communicate with anyone. Such patients would most likely suffer. As there is no way currently to address their suffering, we should allow them to die. No matter the truth about their cognitive lives, death would either be a neutral event, or a blessing. (shrink)

What is the relationship between negative experience, artistic production, and prudential value? If it were true that (for some people) artistic creativity must be purchased at the price of negative experience (to be clear: currently no one knows whether this is true), what should we conclude about the value of such experiences? Are they worth it for the sake of art? The first part of this essay considers general questions about how to establish the positive extrinsic value of something intrinsically (...) negative. The second part emphasizes the importance of various distinctions within the realm of the negative. We must distinguish between adversity (which is non-mental) and negative mental states, and between negative thoughts (or attitudes) and negative affect. Within the realm of negative affect, we must distinguish between negative emotions and moods, on the one hand, and negative affective perspectives on the other, and then between mildly negative affective perspectives and severely negative ones (for which I reserve the term ‘suffering’). These distinctions matter greatly, since different types of negative experience have very different degrees of prudential disvalue. Although many types of negative experience may be “worth it”—because their positive extrinsic value outweighs their negative value—this is rarely true of severe suffering. (shrink)

What is the best way to account for the badness of pain and what sort of theory of welfare is best suited to accommodate this view? I argue that unpleasant sensory experiences are prudentially bad in the absence of contrary attitudes, but good when the object of positive attitudes. Pain is bad unless it is liked, enjoyed, valued etc. Interestingly, this view is incompatible with either pure objectivist or pure subjectivist understandings of welfare. However, there is a kind of welfare (...) theory that can incorporate this view of the badness of pain and which is very, very close to being a form of subjectivism. Moreover, this hybrid account of welfare is entirely compatible with the deep motivations of subjectivism. I therefore argue that those who lean towards welfare subjectivism should adopt this account of pain, and that we should revise our understanding of subjectivism to count such theories as subjective. (shrink)

Mackenzie Graham has made an important contribution to the literature on decisionmaking for patients with disorders of consciousness. He argues, and I agree, that decisions for unresponsive patients who are known to retain some degree of covert awareness ought to focus on current interests, since such patients likely retain the kinds of mental capacities that in ordinary life command our current respect and attention. If he is right, then it is not appropriate to make decisions for such patients by appealing (...) to the values they had in the past, either the values expressed in an advance directive or the values recalled by a surrogate. There are two things I wish to add to the discussion. My first point is somewhat critical, for although I agree with his general conclusion about how, ideally, such decisions should be approached, I remain skeptical about whether his conclusion offers decisionmakers real practical help. The problem with these cases is that the evidence we have about the nature of the patient’s current interests is minimal or nonexistent. However—and this is important—Graham’s conclusion will be extremely relevant if in the future, our ability to communicate with such patients improves, as I hope it will. This leads to my second point. Graham’s conclusion illustrates a more general problem with our standard framework for decisionmaking for previously competent patients, a problem that has not been adequately recognized. So, in what follows, I explain the problem I see and offer some brief thoughts about solutions. (shrink)

How Compassion can Transform our Politics, Economy, and Society draws together experts across disciplines - ranging from psychology to climate science, philosophy to economics, history to business - to explore the power of compassion to transform politics, our society, and our economy. The book shows that compassion can be used as the basis of a new political, economic, and social philosophy as well as a practical tool to address climate breakdown, inequality, homelessness, and more. Crucially, it also provides a detailed (...) plan for its execution. It marks the first time that the study of compassion has been applied across multiple disciplines. The book provides a template for the study of compassion on an interdisciplinary basis and will appeal to academics, professionals and the general reader searching for a fresh and inspiring approach to the seemingly intractable problems facing the world. (shrink)

My thanks to Professors Hawkins and Szmukler for their thoughtful commentaries; I am particularly glad to see these scholars' valuable expertise directed toward what raises pressing issues not only for psychiatry but for contemporary society.Prof. Hawkins reasons that the use of forced feeding with some anorexia is justified, while emphasizing that this will occur rarely. She and I are in agreement that a mere handful of cases may be affected by our debate, since anecdotal evidence from clinical settings (...) as well as the studies Hawkins cites suggest that forced feeding will often be contraindicated. Still, the matter can equally well be cast hypothetically, as I implied in my earlier discussion. If forced feeding... (shrink)

'This book not only revises the interpretation of Dewey's ethics but also has relevance to recent discussions about the possibility of naturalistic, ...

Introduction -- Elucidating complexity theories -- Complexity in the natural sciences -- Complexity in social theory -- Towards transdisciplinarity -- Complexity in philosophy: complexification and the limits to knowledge -- Complexity in ethics -- Earth in the anthropocene -- Complexity and climate change -- American dreams, ecological nightmares and new visions -- Complexity and sustainability: wicked problems, gordian knots and synergistic solutions -- Conclusion.

The literature of economic theory, like that of philosophy, abounds in prefaces and prolegomena. Methodology and analysis of concepts take an important place in a science which has not found the sure path of development. But there is no sure path for methodology either. The selfconscious methodology of social science has been largely a borrowing from that of physical science, where procedures have developed to a stage of considerable maturity. But the analogy falls down where guidance is most needed, at (...) the points where social science is most likely to develop new concepts and new types of structure. Philosophers have not been lacking, indeed, to belittle the entire enterprise, and to deny the possibility of anything that could strictly be called social science. (shrink)

How is human social intelligence engaged in the course of ordinary conversation? Standard models of conversation hold that language production and comprehension are guided by constant, rapid inferences about what other agents have in mind. However, the idea that mindreading is a pervasive feature of conversation is challenged by a large body of evidence suggesting that mental state attribution is slow and taxing, at least when it deals with propositional attitudes such as beliefs. Belief attributions involve contents that are decoupled (...) from our own primary representation of reality; handling these contents has come to be seen as the signature of full-blown human mindreading. However, mindreading in cooperative communication does not necessarily demand decoupling. We argue for a theoretical and empirical turn towards “factive” forms of mentalizing here. In factive mentalizing, we monitor what others do or do not know, without generating decoupled representations. We propose a model of the representational, cognitive, and interactive components of factive mentalizing, a model that aims to explain efficient real-time monitoring of epistemic states in conversation. After laying out this account, we articulate a more limited set of conversational functions for nonfactive forms of mentalizing, including contexts of meta-linguistic repair, deception, and argumentation. We conclude with suggestions for further research into the roles played by factive versus nonfactive forms of mentalizing in conversation. (shrink)

There is a strong appetite in ‘the wild’ (i.e., beyond the academy) for public philosophy. There are myriad forums available, from magazines and online publications to podcasts and YouTube videos, for those who wish to engage in philosophy in a non-academic context. For academic philosophers, this has raised methodological and metaphilosophical questions like: ‘what is the best way to engage in public philosophy?’ and ‘what are our aims when we engage in public philosophy?’ But what do ‘the public’ want? If (...) public philosophy is philosophy written for a public audience, what is it, exactly, that it can or might do for them? Several answers have been proposed by philosophers, but less attention has been paid to how the public themselves might answer that question. The aim of this essay is to try and put together at least the beginning of an answer. In June 2022 we put out a survey in the hope of eliciting views from ‘the public’ on issues relating to the nature and aims of both philosophy (more generally) and public philosophy. In doing so, our aim was to take a ‘democratic’ approach to answering the question: What is public philosophy? (shrink)

This article is a contribution to our understanding of how Archilochean poetics may be situated in the longer poetic tradition. In examining two fragments that have received little attention, I hope to illustrate how Archilochus’ poetry both engaged with its predecessors and was in turn engaged by its successors. Fragment 222W employs a theme that was perhaps already conventional for Hesiod, in which the incompatibility of the sexes is implicated in the cycle of seasons, an idea that also seems relevant (...) to Archilochus’ quarrel with the daughters of Lycambes. Light is shed on 39W by comparing it to later words for skinning that serve as metaphors for cheating someone, the best known example of which is found in Catullus. In the first fragment the text can be elucidated by a look to Archilochus’ forerunners, and in the second by looking to his heirs. (shrink)

A fundamental entity is an entity that is ‘ontologically independent’; it does not depend on anything else for its existence or essence. It seems to follow that a fundamental entity is ‘modally free’ in some sense. This assumption, that fundamentality entails modal freedom (or ‘FEMF’ as I shall label the thesis), is used in the service of other arguments in metaphysics. But as I will argue, the road from fundamentality to modal freedom is not so straightforward. The defender of FEMF (...) should provide positive reasons for believing it, especially in light of recent views that are incompatible with it. I examine both direct and indirect routes to FEMF. (shrink)