Risk-related standard inevitable in assessing competence

In a preceding article, Mark Wicclair suggested that where patient preferences clash with the doctor's recommendations, a minimal understanding of the task at hand, rather than the risks involved, should be the basis for standards of patient competence in decision-making (Bioethics 5(2):91-104, April 1991). Skene, Principal Law Reform Officer of the Victoria, Australia, Law Reform Commission, questions Wicclair's minimum standard from a legal standpoint, pointing out contradictions in the effects of such a standard. Skene concludes that legal protection and the education of both doctors and patients are the most suitable safeguards of patient autonomy.     

Risk-related standards of competence: continuing the debate over risk-related standards of competence

This discussion paper addresses Ian Wilks' defence of the risk-related standard of competence that appears in Bioethics 11 . Wilks there argues that the puzzle posed by Mark Wicclair in Bioethics 5 against Dan Brock's argument in favour of a risk-related standard of competence — namely that Brock's argument allows for situations of asymmetrical competence — is not a genuine problem for a risk-related standard of competence. To show this, Wilks presents what he believes to be two examples of real situations in which asymmetrical competence arises.
I argue that insofar as Wilks equivocates two senses of competence in his examples — namely, competence to perform a task and competence in performing a task — Wilks is unable to illustrate the existence of real situations of asymmetrical competence. By examining the way in which Wilks equivocates two senses of competence in his examples, and by applying the results of this examination to the problem of patient competency within the medical field, I argue that not only does Wilks fail to show that situations of asymmetrical competence exist, but he is also unable to provide a foundation for understating how the risk-related standard of competence can strike a balance between an individual's autonomy and benevolent intervention.
I thus conclude that insofar as Wilks fails to answer the objections raised by Wicclair and others against the risk-related standard of competence, the risk-related standard of competence continues to be undermined by the problem of asymmetrical competence.     

The debate over risk-related standards of competence

This discussion paper continues the debate over risk-related standards of mental competence which appears in Bioethics 5. Dan Brock there defends an approach to mental competence in patients which defines it as being relative to differing standards, more or less rigorous depending on the degree of risk involved in proposed treatments. But Mark Wicclair raises a problem for this approach: if significantly different levels of risk attach, respectively, to accepting and refusing the same treatment, then it is possible, on this account, for a patient to be considered competent to accept, but not refuse, the treatment, or vice versa. I argue that this puzzle does not constitute a genuine problem for a risk-related standard.
To this end I focus on the situation where, of two mutually exclusive options, one is riskier, but offering more pronounced benefit, while the other is safer, but offering less benefit. I argue for this proposition: it can take far less insight to know that the safe option is good than to know that the risky option is better. Now say one is actually informed enough to know that the safe option is good, but not enough to know whether the risky option is better; in such a case one is competent to say yes to that first option (the safe one), but not to say yes to the other. (I argue in passing that Pascal's Wager can be interpreted as having precisely this deliberative structure.)
I thus conclude that cases do indeed exist where one can be competent to say yes but not no, or vice versa; and that it is thus not an anomaly in the risk-related standard that it entails the existence of such cases.     

Decisionmaking competence and risk

Mark Wicclair criticizes Allen Buchanan's and my claim that determining an appropriate level of competence (Wicclair substitutes "decisional capacity" for "competence", the import of which I note briefly below) for health care treatment decisionmaking involves balancing respecting a patient's self-determination and protecting his or her well-being. The most important implication of this balancing is that a standard of competence should vary in significant part with the effects for the patient's well-being of accepting his or her choice. Wicclair's criticisms take two main forms. First, he considers and rejects four of the positive reasons we offer in support of a risk-related standard. Second, in rejecting our fourth reason he argues that a risk-related standard leads to faulty competence determinations -- too high a standard in some cases and too low a standard in others. If he is correct, there are no positive reasons for adopting a risk-related standard and there are as well specific reasons not to adopt such a standard in order to avoid mistaken competence determinations. My response will address both sorts of criticisms in turn.     

From the editors

Kuhse and Singer, the editors of this special issue of Bioethics, introduce seven articles on conflicting concepts, public policies, and standards for the determination of cardiorespiratory and brain death and the relationship of brain death to the beginning of "brain life" and to organ donation, especially from anencephalic infants. The articles are "Consciousness, the brain and what matters," by Grant Gillett; "Brain death and the anencephalic newborn," by Robert D. Truog and John C. Fletcher; "Brain death and brain life: rethinking the connection," by Jocelyn Downie; "A plea for the heart," by Martyn Evans; "The importance of knowledge and trust in the definition of death," by Bo Andreassen Rix; "Death, democracy and public ethical choice," by Reid Cushman and Soren Holm; and "Misunderstanding death on a respirator," by Tom Tomlinson.     

Competence and paternalism

Some bioethicists have argued in favor of a sliding scale notion of competence, paternalistically requiring greater competence in relation to more significant risk. I argue against a sliding scale notion, taking issue with the positions of Allen E. Buchanan and Dan W. Brock, Ian Wilkes, and Joel Feinberg. Rejecting arguments that a sliding scale is supported by legal cases, by ordinary usage, and by fallible judgments about competence, I argue in favor of greater evidence of competence when risk is greater. Two clinical cases are examined, both involving amputation, to show that my fixed concept of competence, with a requirement of clearer evidence of competence when risk is high, better accounts for good moral decisions in bioethics.     

Patient decision-making capacity and risk

Although certain requisites of patient decision-making competency are generally agreed upon, there is no universally recognized standard. Wicclair, of the University of West Virginia Department of Philosophy, offers two reasons why a single standard should not be determined. First, competency is variable according to the decision at hand, i.e., task-related. Second, arguments in support of risk-related criteria fail. Wicclair challenges claims that a risk-related standard is legally the most feasible, is supported by the doctrine of informed consent, is consistent with everyday competence judgments, and achieves the best compromise between patient autonomy and concern for patient well-being. He argues that where risk is high, such a standard threatens unattainable requirements for competency; and where it is low, offers no set minimum, resulting in overly weak competency standards. Wicclair concludes that the standard of decision-making capacity should not vary by risk perceived.     

A response to Dodds and Jones

In response to "Surrogacy and Autonomy," by Susan Dodds and Karen Jones in this issue of Bioethics, the author concedes that only a surrogacy practice stringently regulated by good counseling, escape clauses for pregnant women, and the prohibition of profit-making agencies will save women from exploitation, but she objects to singling out women for paternalistic "protection against themselves," and to defending women's autonomy to the extent of their right to behave in ways known to harm a fetus. Dodds and Jones' concerns about attitudes toward women, genetic bias, the concept of children as property, and the harm principle generated by surrogacy contracts are answered with arguments for why surrogacy should not be illegal.     

WHEN DOES POTENTIALITY COUNT? A COMMENT ON LOCKWOOD

Michael Lockwood's essay, "Warnock v. Powell (and Harradine): when does potentiality count?," and Hare's response are two of three articles in this issue of Bioethics discussing potentiality and its implications for experimentation with human embryos. (See also Stephen Buckle's "Arguing from potential.") Hare responds to Lockwood's arguments on potential, an embryo's "interests," and what obligations these interests entail. In Hare's view, the interests are those of the grown person the embryo (or fetus or neonate) will become. In formulating regulations on embryo research, legislators ought to be concerned chiefly with the interests of the persons who may come into existence, grading harms differently for gametes, embryos, fetuses, and neonates, and balancing these against the expected good from the experiments.     

WARNOCK VERSUS POWELL (AND HARRADINE): WHEN DOES POTENTIALITY COUNT?*

Lockwood's essay is one of three in this issue of Bioethics on potentiality and its applicability to research with human embryos. (See also Richard M. Hare's "When does potentiality count? A comment on Lockwood," and Stephen Buckle's "Arguing from potential.") The author critiques the reasoning behind some of the proposals for regulating such research, particularly the recommendations of Britain's Warnock Committee and Enoch Powell's legislative response, the Unborn Children (Protection) Bill. Lockwood attempts to formulate a logically defensible and morally plausible position on potentiality, arguing that it is potential plus identity, which depends on brain development, which generates moral claims. He concludes that, while there may be practical reasons for banning embryo research after the nervous system begins to develop, it may not be morally wrong to experiment with miscarried fetuses whose brain is developing, but who are nonviable.     

CONSCIENTIOUS OBJECTIONS IN PHARMACY PRACTICE IN GREAT BRITAIN

Pharmacists who refuse to provide certain services or treatment for reasons of conscience have been criticized for failing to fulfil their professional obligations. Currently, individual pharmacists in Great Britain can withhold services or treatment for moral or religious reasons, provided they refer the patient to an alternative source. The most high‐profile cases have concerned the refusal to supply emergency hormonal contraception, which will serve as an example in this article. I propose that the pharmacy profession's policy on conscientious objections should be altered slightly. Building on the work of Brock and Wicclair, I argue that conscientious refusals should be acceptable provided that the patient is informed of the service, the patient is redirected to an alternative source, the refusal does not cause an unreasonable burden to the patient, and the reasons for the refusal are based on the core values of the profession. Finally, I argue that a principled categorical refusal by an individual pharmacist is not morally permissible. I claim that, contrary to current practice, a pharmacist cannot legitimately claim universal exemption from providing a standard service, even if that service is available elsewhere.     

"Sweeping up after the parade": professional, ethical, and patient care implications of "turfing"

"Turfing" denotes a patient transfer or triage from one physician to another when the care of that patient feels more troublesome than it is worth. A widespread phenomenon in medical training programs, turfing appears to allocate patient care to meet physicians' rather than patients' needs. Although turfing reportedly causes inter-physician discord and inter-specialty stereotyping, its deeper consequences are poorly understood. Turfing is an interpersonal conflict masquerading as a medical issue. After examining turfing alongside other patient-related slang, I analyze the distinction between "the turf," a person, and "to turf," a practice. Several explanatory models from medical practice are explored in order to illuminate turfing's implications for medical professionalism, ethics, and patient care. I suggest that a physician's medical specialty or practice type--that is, professional culture--may link to that physician's degree of altruism. If so, then what it means fundamentally to be a physician might vary across medical specialties. Such a link calls for a new notion of cultural competence, one that physicians may apply not to patients but to each other.     

Cosmetic psychopharmacology and the President's Council on Bioethics

Advances in neuroscience and biotechnology have heightened the urgency of the debate over "cosmetic psychopharmacology," the use of drugs to enhance mood and temperament in the absence of illness. Beyond Therapy: Biotechnology and the Pursuit of Happiness (2003), the report of the President's Council on Bioethics, has criticized the use of cosmetic psychopharmacology. The Council claimed that cosmetic psychopharmacology will necessarily lead to "severing the link between feelings of happiness and our actions and experiences in the world," but it provided no satisfactory arguments to support this claim and ignored the possibility that cosmetic psychopharmacology might actually enhance the link between happiness and experience. The Council's arguments against cosmetic psychopharmacology depend heavily on the mistaken belief that Prozac and similar antidepressants are mood brighteners in healthy subjects. The empirical evidence, however, clearly indicates that these drugs are not forms of cosmetic psychopharmacology, thus negating much of the Council's arguments. The use of pharmaceutical agents to enhance mood or personality in normal individuals should not be rejected a priori. Instead, the effects of each agent on the individual and on society must be weighed using sound ethical reasoning and the best evidence available.     

The friendship model: a reply to Illingworth

Patricia M.L. Illingworth, in an article in the January 1988 issue of Bioethics, maintained that a friendship model of the physician patient relationship violates the autonomy of patients who do not want to be friends with their physicians and diminishes the autonomy of patients who seek such friendship based on "psychological oppression" stemming from internalization of feelings of inferiority. James contends in this reply that much of Illingworth's critique of the model was beside the point. He argues that trust between doctor and patient is a moral good in the therapeutic relationship and that this trust has enough similarities to trust between friends to make a model which develops these similarities well worth exploring.     

Arguing from potential

Buckle's article is one of three discussing the potentiality of the human embryo in this issue of Bioethics devoted to the subject of embryo research. (See also Michael Lockwood's "Warnock v. Powell (and Harradine): when does potentiality count?" and Richard M. Hare's "When does potentiality count? A comment on Lockwood.") In his essay, Buckle analyzes some of the distinct ways of arguing about potential, and the different senses of potential on which these arguments rely. He also examines some of the criticisms of the argument from the potential and replies to them, and shows why the argument's protagonists and critics are often at cross-purposes.     

Gender in bioethics: theory and practice -- an introduction

Does the care perspective make a difference? Can it reach as far as we would like? It is the goal of this special issue on Gender in Bioethics: Theory and Practice to begin to address some of these important questions. In the first article, Virginia Sharpe provides a comprehensive and thoughtful analysis of how the orientations of justice and care are played out in medical ethical theory. In the second article, James Nelson argues that the more traditional approach in Bioethics to maternal-fetal conflicts is not useful, and that a care perspective is more appropriate. Thoughtful commentary on Nelson's article is provided by Rosemarie Tong. For readers new to the justice-care debate in moral theory, the following articles will provide an informative introduction. For those who are more familiar, it is hoped that you will be challenged by the extension of the debate to the practical issue of maternal-fetal conflicts.     

Some legal aspects of mental capacity.

This article discusses some practical matters which arise when competence to make decisions is in question. Consent, testamentary capacity, powers of attorney, the Court of Protection, "living wills," and research on people with dementia are briefly considered.     

Prior consent as a liberal theory of health care rationing: commments of Savulescu's constructive critique

[In his review essay in this issue of Bioethics,] Julian Savulescu lucidly summarizes and assesses each essay in Strong Medicine. I would like to clarify a few important general points about prior consent as a conceptual framework for the ethical rationing of health care, correct several specific misreadings, and defend my basic claim despite some acknowledged problems.     

Trapping the sensor

Voltage-gated ion channels open in response to a change in membrane potential. The "sensor," or the channel's molecular entity responsible for the detection of voltage change, is formed by a transmembrane element, rich with basic residues, called the "voltage sensor" or the "S4 domain." The movement of the S4 drives a global conformational change leading to the opening of the permeation pathway and ion conduction. In this issue of Neuron, Sch?nherr and colleagues show that physical constrains of the "gating canal," or the crevice through which the S4 moves, determines whether voltage-gated potassium channels open quickly or slowly.     

A response to Purdy

The authors respond to Laura Purdy's article, "Surrogate mothering: exploitation or empowerment?," in the same issue of Bioethics. They contend that focusing on what is necessarily wrong with surrogate motherhood contracts allows Purdy to overlook the contingent features of classist, patriarchal society that make such contracts morally wrong and to marginalize feminist concerns. Theoretical fallacies within Purdy's consequentialist framework create too individualistic and narrow a discussion of the possible harms of surrogate contracts, ignoring influences upon women as a group and the psychological risks to the surrogate mother. If surrogacy contracts have the potential to empower women, then we must see some specific changes that would make this a reality, given that Purdy does not mean surrogacy as it is currently practised.