The legal test for mental capacity -- that you understand information, have the capacity to use and weigh it and that you can express your choice -- is problematic as it stands, he said, but no matter how much it’s refined, there will still be difficulties.
“Professionally speaking, anorexia patients are fascinating in how they demonstrate this,” he said. “They pass the standard capacity tests with flying colors, they often have real insight into their condition and yet they make terrible decisions. Interestingly, later on, when they are somewhat recovered, some say that though they had been expressing themselves clearly and passed the test, inside they were crying out for the very treatment they were adamantly refusing.”
Martin has just returned from the first of a series of weekend workshops that will bring together interested colleagues from the worlds of psychiatry, law, social welfare and philosophy. One of the biggest difficulties will be working beyond the usual disciplinary boundaries.
BREAKER
“A big challenge is getting people to talk across their disciplines,” Martin said.
But it is important to get people to question their assumptions.
“We think it is obvious that autonomy is worth pursuing. But the word ‘autonomy’ means self-legislation. Historically, it’s actually a very controversial concept that hasn’t always been held up as the ideal. We need to think about whether and why autonomy is the right ideal for beings like us,” he said.
Linked to that is a problem regularly encountered in observing decision-making by people with a mental-health condition — the role played by time. Nowadays, Martin said, “the law tends to fetishize the instant” at which a person makes a decision.
“I call this the ‘no, no, no, no, no, yes’ scenario. A patient may resist a medical recommendation quite insistently. But at the moment when they say ‘yes,’ that can constitute consent. When someone is going along with the doctors, nobody ever questions their mental capacity,” he said.
For a philosopher, he said, the element of how time operates in decision-making is a rich and complex topic. However, there are other ways to look at decision-making, which take in that person’s history, medical context, their character traits over time and their ability to express themselves with help from others.
“My father-in-law suffers from Alzheimer’s, and we often find ourselves in the situation of having to help him make decisions,” Martin said. “We may pretend that consent is something that individuals do by themselves, but that’s a myth perpetuated by the law.”
“My father-in-law is capable of making a lot of decisions for himself. But when he does, the decision-making involves a division of labor between him, his daughters, me, his psychiatrist and his care workers. If you think about it, making decisions in life is almost always a collective endeavor,” he said.
When the research concludes, Martin’s team will conduct a knowledge transfer master class to be piloted at the Maudsley.
“In my experience so far with this, physicians and lawyers and social welfare officers find it an enormous relief to be able to get some of those questions out in the open for discussion,” he said.
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