The empire of illness: competence and coercion in health-care decision making.

• Author: Garrison, Marsha

Abstract

The law's willingness to take account of factors that interfere with volition tends to vary in accordance with its underlying goals. The law of wills is dominated by the principle of freedom of testation; it has thus developed doctrines aimed at detecting coercive influences that interfere with the testator's free agency. The law of medical decision making, dominated by the analogous principle of patient autonomy, has not developed doctrines aimed at detecting coercive influences despite a large and growing body of evidence showing that disordered insight and major depression, two common medical conditions, often have a coercive, negative effect on treatment choice and compliance. When a patient is afflicted with disordered insight or major depression, a decision against treatment often stems from illness instead of the patient's own goals and values.

Current law fails to protect vulnerable patients whose free agency has been lost to their illnesses. These patients need, and deserve, protection from the coercive effects of distorted perception and motivation. The undue-influence and insane-delusion doctrines developed within the law of wills to detect and disarm coercive influences are readily adaptable to the medical decision-making context. There is a wealth of assessment protocols that offer reliable methods of detecting the influence of depression and insight deficiencies.

This Article advocates a new approach to patient decision making, modeled on the law of wills, that assesses voluntariness as well as competence. This approach is consistent with empirical evidence about the realities of patient decision making and traditional accounts of responsibility and moral culpability. It provides patients with protection against harmful, nonautonomous choices that current law does not.

TABLE OF CONTENTS I. COMPETENCE AND COERCION: TRADITIONAL LEGAL STANDARDS A. Competence To Consent: The Law's Consistent Emphasis on Cognition 1. The Law of Medical Decision Making 2. Competence Determination in, Other Areas of Law B. Voluntariness: The Law's Inconsistent Efforts To Protect Against Coercive Influences C. The Law of Medical Decision Making: A Puzzling Exception to the Dominant Pattern II. IS CURRENT LAW ADEQUATE TO ENSURE PATIENT AUTONOMY? A. Possible Justifications for the Parsimonious Approach B. The Evidence: Conditions that Coerce 1. Disordered Insight 2. Depression and Hopelessness III. A NEW APPROACH TO MEDICAL DECISION MAKING: ASSESSING COMPETENCE PLUS COERCION A. The Law of Wills as a Model for Reform B. Matters of Measurement CONCLUSION I find no false apprehensions, to work upon mine understanding; and yet ... insensibly the disease prevailes. The disease hath established a Kingdome, an Empire in mee, and will have certaine ... secrets of State, by which it will proceed, and not be bound to declare them. (1) The law enforces important choices made by the decision maker with liberty and capacity, and it holds her responsible for those choices. (2) But when a decision maker lacks liberty or capacity, the law typically takes a protective stance. This protective policy is evident throughout our legal system: it supports rules that void the contract of a minor, the will of a testator subject to undue influence, and a marriage entered under duress; it underlies civil commitment statutes, the juvenile justice system, and the insanity defense.

Although the concepts of liberty and capacity pervade our legal system, we do not have a uniform definition of either concept. Thus courts have found that the testator's will was void but his marriage valid, (3) and that he was civilly liable but not criminally responsible. (4) Such variation reflects divergence in the goals that underlie different areas of law; the law's interest in concepts like freedom and responsibility "is an interest in enough freedom and responsibility to satisfy the purposes and interests at hand." (5) Variation also reflects the fact that both coercion and incapacity describe a broad range of conditions rather than one unvarying state: both the prisoner and the con artist's victim might say that their actions were coerced; the unconscious adult and the normal six-year-old both lack decision-making capacity. Nor are liberty and capacity necessarily gained, or lost, in one fell swoop. The child progresses incrementally in her ability to make informed choices, and many conditions that ultimately destroy liberty or capacity develop slowly, even insidiously. The victim of dementia, for example, typically succumbs to her illness in uneven fits and starts that may extend over decades. (6)

Although health-care professionals typically diagnose impairment and make initial competence determinations, courts ultimately determine whether a particular individual has enough liberty and capacity to make the decision in question. In making this determination, courts must place choices that reflect varying levels and types of impairment into one of two categories: either a decision is competent and voluntary, or it is not. (7)

Capacity and coercion determinations present challenges in all areas of law, but nowhere are these challenges more pressing than in the field of medical decision making. Individuals with serious decisional impairments do not necessarily attempt to execute a will or make a contract, but the fact of serious impairment will typically ensure the need for health-care choices. These choices may determine the individual's state of health and even his survival. They may hinder or advance the medical profession's capacity to test new treatments for conditions like dementia and mental illness. They may entail serious consequences for both the individual's family and the public.

The current law of medical decision making is ill-equipped to meet these challenges. When deciding whether to enforce a medical decision, courts and legislatures have traditionally utilized a parsimonious approach that looks exclusively at the actor's capacity, or competence, to make the decision in question; in contrast to the law of wills and contracts, subjective factors that might undermine the voluntariness of the actor's choice are not taken into account. (8) When the patient accepts beneficial treatment, this parsimonious approach is warranted; there is no obvious harm when we allow a patient, autonomous or not, to make a decision that comports with her medical interests. However, in recent years evidence has mounted that various common mental conditions often have a coercive effect that may inhibit the choice of a beneficial treatment. The parsimonious approach precludes consideration of these conditions and their impact on the patient's choice.

The parsimonious approach is typically justified on the basis of patient autonomy, a guiding principle in the law of medical decision making. (9) Patient autonomy undeniably is--and should be--an important value in medical decision making. But the concept of autonomy that underlies the parsimonious approach is cramped and artificial: it is inconsistent with empirical evidence about the realities of patient decision making; (10) it is inconsistent with traditional accounts of responsibility and moral culpability; (11) and it is inconsistent with principles utilized in analogous areas of law such as wills and contracts. (12)

Despite mounting evidence of its deficiencies, the parsimonious model continues to dominate the law of medical decision making and its development. Medical researchers now take this approach to patient consent as a given, (13) and new, standardized patient-assessment tools have been based on it. (14) Although there has been some movement away from the parsimonious model in a couple of isolated contexts, these developments have not had any impact on the broader law of medical decision making. (15)

In this Article, I argue that the law of medical decision making should move beyond the parsimonious model by developing voluntariness doctrines analogous to those employed in the law of wills, and I outline principles to guide development of such doctrines. Part I describes the law of medical decision making; it also compares and contrasts this body of law with the standards governing decision enforceability in other areas. Part II explains why the current law of medical decision making is inadequate to ensure patient autonomy and protect the interests of nonautonomous patients. Part III offers a new approach that is consistent with analogous areas of law and that reflects the research evidence on patient decision making.

1. COMPETENCE AND COERCION: TRADITIONAL LEGAL STANDARDS

   1. Competence To Consent: The Law's Consistent Emphasis on Cognition

      1. The Law of Medical Decision Making

         Mrs. Rosaria Candura, a seventy-seven-year-old widow with advanced diabetes, was suffering from gangrene in her right foot and leg. Her doctors recommended amputation. After vacillation, Mrs. Candura refused to consent to the operation, and her daughter filed a guardianship petition seeking authority to consent on her mother's behalf. The trial court granted the daughter's petition, but the appellate court reversed. (16)

         Reviewing the evidence, the appellate court noted that Mrs. Candura

         has discussed ... the reasons for her decision: that she has been unhappy since the death of her husband; that she does not wish to be a burden to her children; that she does not believe that the operation will cure her; that she does not wish to live as an invalid or in a nursing home; and that she does not fear death but welcomes it. She is discouraged by the failure of the earlier operations to arrest the advance of the gangrene. (17) The court found that Mrs. Candura was "lucid on some matters and confused on others." (18) More specifically, it concluded that "[h]er train of thought sometimes wanders. Her conception of time is distorted. She is hostile to certain doctors. She is on occasion defensive and sometimes combative in her...