Olver, Ian --- "Editorial: The capacity to make decisions" [2018] PrecedentAULA 14; (2018) 145 Precedent 2

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THE CAPACITY TO MAKE DECISIONS

By Ian Olver AM

It is always interesting to cross disciplines. Discussions around legal capacity reflect medical dilemmas in obtaining consent for treatment, and the bioethical discussions on individual autonomy as a value as opposed to a right.

The simple definition of legal capacity put forward by Sir Owen Dixon CJ in Gibbons vs Wright^[1]

– ‘the capacity to understand a transaction when it is explained’ – parallels the requirement for giving informed consent to medical treatment where patients must be given information to which they would likely attach significance (Rogers vs Whittaker^[2]) and the doctor must be satisfied that they understand it. An adult, competent patient signing a consent form may meet the legal requirement to obtain consent but there must be an understanding that they have been given the information required to make an informed choice.

Many of the articles in this edition of Precedent share common themes. It seems reasonable to start with the common law presumption that adults have the capacity to make their own decisions. However, several articles demonstrate that mental capacity can change over time and should be assessed at the same time that the transaction of interest is taking place. Bruce Brew describes cognitive decline following nervous system damage, although cognitive dysfunction following anti-cancer therapy may improve with time. Sharon Drew, in discussing capacity and cost agreements, lists stress, fear, pain and medication as affecting capacity only temporarily. In the medical setting, delaying the giving of information to a patient to avoid exacerbating their acute condition, known as therapeutic privilege, is considered as soft paternalism only because the patient will receive the information once their acute distress settles.

The capacity required of a person varies depending on the nature of the decision to be made. As Darryl Browne discusses, a person who, due to reduced mental capacity, cannot manage their financial affairs may still be capable of making a will. In a medical setting, you would want to be more certain of the competence of a patient refusing medical treatment that could result in their imminent death, as compared with a refusal to remove a skin lesion.

Capacity must be specific to the decision being made; however, the medical judgement of competence should be based on broader criteria. Ben Zipser, quoting from the NSW Law Society, speaks of assessing a person’s decision-making ability, not the decisions they make. A patient’s refusal of potentially life-saving treatment may prove controversial, but a psychiatric assessment of mental competence – subjective to some degree by its nature – should be based on that patient’s decision-making capabilities in a broader context. The fact that the decision is incomprehensible, or that few others would make the same choice, is not relevant if capacity is found.

Finally, it is important to be satisfied that a person is making a truly autonomous decision, whether legal or medical. Of Miller’s four attributes of autonomy,^[3] foremost, a decision should be voluntary and free from coercion. A medical example could be whether relatives are influencing the decisions of a vulnerable patient. That would be external coercion, but people may also lack control over their desires or actions. Addictions or mental illness can fall into that category and serve as internal restrictions on free choice. Angela Sdrinis explains that people who have suffered abuse may harbour shame and guilt, which biases their disclosure, and therefore may constrain their autonomy.

A decision must be free but also intentional: that requires a person to have sufficient knowledge of the risks and benefits of a treatment and also of alternative treatments available. However, what if the knowledge is flawed and a patient is expressing non-rational preferences? They could be cultural beliefs about the cause and treatment of an illness, fears or phobias, or prioritising short-term side-effects such as hair loss over long-term survival benefits. These could also constrain autonomous decision-making. However, attempts to dispel non-rational preferences may be perceived as coercion rather than education.

Whatever the legal capacity or preference, a common theme is that the best interest to be served is that of the person making the decision. In all the scenarios presented, substituted decision-making should be the last resort.

Ian Olver AM is a medical oncologist and bioethicist, and is currently Professor of Translational Cancer Research and Director of the Sansom Institute for Health Research at the University of South Australia.

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^[1] [1954] HCA 17; (1954) 91 CLR 423, 438.

^[2] [1992] HCA 58; (1992) 175 CLR 479.

^[3] BL Miller, ‘Autonomy and the refusal of life saving treatment’ (The Hastings Centre Report, August 1981), 22-29.