Fabian Freyenhagen

Mental Capacity and Decisional Autonomy: An Interdisciplinary Challenge

With the waves of reform occurring in mental health legislation in England and other jurisdictions, mental capacity is set to become a key medico‐legal concept. The concept is central to the law of informed consent and is closely aligned to the philosophical concept of autonomy. It is also closely related to mental disorder. This paper explores the interdisciplinary terrain where mental capacity is located. Our aim is to identify core dilemmas and to suggest pathways for future interdisciplinary research. The terrain can be separated into three types of discussion: philosophical, legal and psychiatric. Each discussion approaches mental capacity and judgmental autonomy from a different perspective yet each discussion struggles over two key dilemmas: whether mental capacity and autonomy is/should be a moral or a psychological notion and whether rationality is the key constitutive factor. We suggest that further theoretical work will have to be interdisciplinary and that this work offers an opportunity for the law to enrich its interpretation of mental capacity, for psychiatry to clarify the normative elements latent in its concepts and for philosophy to advance understanding of autonomy through the study of decisional dysfunction. The new pressures on medical and legal practice to be more explicit about mental capacity make this work a priority.

Decision-making capacity for treatment in psychiatric and medical in-patients: cross-sectional, comparative study

Background Is the nature of decision-making capacity (DMC) for treatment significantly different in medical and psychiatric patients? Aims To compare the abilities relevant to DMC for treatment in medical and psychiatric patients who are able to communicate a treatment choice. Method A secondary analysis of two cross-sectional studies of consecutive admissions: 125 to a psychiatric hospital and 164 to a medical hospital. The MacArthur Competence Assessment Tool - Treatment and a clinical interview were used to assess decision-making abilities (understanding, appreciating and reasoning) and judgements of DMC. We limited analysis to patients able to express a choice about treatment and stratified the analysis by low and high understanding ability. Results Most people scoring low on understanding were judged to lack DMC and there was no difference by hospital (P = 0.14). In both hospitals there were patients who were able to understand yet lacked DMC (39% psychiatric v. 13% medical in-patients, P<0.001). Appreciation was a better ‘test’ of DMC in the psychiatric hospital (where psychotic and severe affective disorders predominated) (P<0.001), whereas reasoning was a better test of DMC in the medical hospital (where cognitive impairment was common) (P = 0.02). Conclusions Among those with good understanding, the appreciation ability had more salience to DMC for treatment in a psychiatric setting and the reasoning ability had more salience in a medical setting.

Honneth on social pathologies: a critique

Abstract Over the last two decades, Axel Honneth has written extensively on the notion of social pathology. He has presented it as a distinctive critical resource of Frankfurt School Critical Theory, in which tradition he places his own work; and as an alternative to the mainstream liberal approaches in political philosophy. In this paper, I review the developments in Honneths writing about this notion and offer an immanent critique, with a particular focus on his recent major work Freedoms Right. Both his early context-transcendent approach and his more recent immanent approach are found wanting, and his increasing reformism is exposed and criticized. The central distinction in Freedoms Right between social pathologies and misdevelopments is also shown to be unworkable. In addition, I demonstrate that Zurns influential proposal to characterize the phenomena Honneth identified as social pathologies in terms of a cognitive disconnect does not fit (with Zurns own description of) these phenomena. While some such phenomena, like what Honneth describes as “Organized Self-Realization,” call out for conceptualization in terms of the notion of social pathology, an alternative characterization of this notion is necessary.

Hidden substance: mental disorder as a challenge to normatively neutral accounts of autonomy

Mental capacity and autonomy are often understood to be normatively neutral – the only values or other norms they may presuppose are those the assessed person does or would accept. We show how mental disorder threatens normatively neutral accounts of autonomy. These accounts produce false positives, particularly in the case of disorders (such as depression, anorexia nervosa and schizophrenia) that affect evaluative abilities. Two normatively neutral strategies for handling autonomy-undermining disorder are explored and rejected: a blanket exclusion of mental disorder, and functional tests requiring consistency, expression of identity, reflective non-alienation or lack of compulsion. Finally, we suggest ways in which substantivist alternatives to neutrality can be made more promising through increased transparency, democratic contestability of conditions for capacity and autonomy, and a historically sensitive caution concerning restrictions of liberty.

Adorno’s politics Theory and praxis in Germany’s 1960s

Theodor W. Adorno inspired much of Germany’s 1960s student movement, but he came increasingly into conflict with this movement about the practical implications of his critical theory. Others – including his friend and colleague Herbert Marcuse – also accused Adorno of a quietism that is politically objectionable and in contradiction with his own theory. In this article, I reconstruct, and partially defend, Adorno’s views on theory and (political) praxis in Germany’s 1960s in 11 theses. His often attacked and maligned stance during the 1960s is based on his analysis of these historical circumstances. Put provocatively, his stance consists in the view that people in the 1960s have tried to change the world, in various ways; the point – at that time – was to interpret it.

Taking reasonable pluralism seriously: an internal critique of political liberalism

The later Rawls attempts to offer a non-comprehensive, but nonetheless moral justification in political philosophy. Many critics of political liberalism doubt that this is successful, but Rawlsians often complain that such criticisms rely on the unwarranted assumption that one cannot offer a moral justification other than by taking a philosophically comprehensive route. In this article, I internally criticize the justification strategy employed by the later Rawls. I show that he cannot offer us good grounds for the rational hope that citizens will assign political values priority over non-political values in cases of conflict about political matters. I also suggest an alternative approach to justification in political philosophy (that is, a weak realist, Williams-inspired account) that better respects the later Rawls’s concern with non-comprehensiveness and pluralism than either his own view or more comprehensive approaches. Thus, if we take reasonable pluralism seriously, then we should adopt what Shklar aptly called ‘liberalism of fear’.

Clinical assessment of decision-making capacity in acquired brain injury with personality change

Assessment of decision-making capacity (DMC) can be difficult in acquired brain injury (ABI) particularly with the syndrome of organic personality disorder (OPD) (the “frontal lobe syndrome”). Clinical neuroscience may help but there are challenges translating its constructs to the decision-making abilities considered relevant by law and ethics. An in-depth interview study of DMC in OPD was undertaken. Six patients were purposefully sampled and rich interview data were acquired for scrutiny using interpretative phenomenological analysis. Interview data revealed that awareness of deficit and thinking about psychological states can be present. However, the awareness of deficit may not be “online” and effectively integrated into decision-making. Without this online awareness of deficit the ability to appreciate or use and weigh information in the process of deciding some matters appeared absent. We argue that the decision-making abilities discussed are: (1) necessary for DMC, (2) threatened by ABI , and (3) assessable at interview. Some advice for practically incorporating these abilities within assessments of DMC in patients with OPD is outlined.

Reasoning Takes Time: On Allison and the Timelessness of the Intelligible Self

Consider the following objection of Bennett to Kant: The least swallowable part of Kants whole theory of freedom is the claim that the causality of freedom is not in time. This follows from Kants doctrine that time is an appearance, and anyway the theory of freedom needs it: it is because the noumenal cause of an event is not in time, and thus is not itself an event, that it escapes the causality of nature. Kant is unembarrassed: ‘Inasmuch as it is noumenon , nothing happens in it; there can be no change requiring dynamical determination in time, and therefore no causal dependence upon appearances … No action begins in this active being itself; but we may yet quite correctly say that the active being of itself begins its effects in the sensible world’ [ KrV , A541=B569]. That is indefensible. Something in which ‘nothing happens’ cannot be ‘active’ or ‘begin’ a train of events. (Bennett 1974: 226)

An unblinkered view of best interests

Wayne Martin and colleagues argue that decisions about patients’ best interests must sometimes take into account the interests of others

Adorno's Ethics Without the Ineffable

I. Introduction There is a perennial problem affecting Adornos philosophy: it seems to lack the resources to account for the normativity it contains. In an influential article, James Gordon Finlayson has analyzed this problem and offered an intriguing solution to it.1 According to Finlayson, Adorno subscribes to a normative ethics, but this commitment is in tension with his view that we cannot know the good or any positive values (in short, with his negativism). Finlayson argues that by drawing only on resources within Adornos philosophy, it is, however, possible to provide access to a kind of…