Combining Supported Decision-Making with Competence Assessment: A Way to Protect Persons with Impaired Decision-Making Capacity against Undue Influence

In a compelling article, Peterson, Karlawish and Largent (2022) argue that supported decision-making (SDM) is preferable to substitute decision-making for people with dynamic impairments. We fully agree with the authors that substitute decision-making should be a last resort and that SDM should be implemented as a less restrictive alternative. On a general note, we were surprised to see that the target article focuses exclusively on mild cognitive impairment and early-stage dementia and neglects psychotic and bipolar disorders, even though impairments in the latter two diagnostic groups tend to be much more dynamic than impairments in the former two. We were also somewhat disappointed at seeing that the article neglects most of the rich and insightful literature on SDM and the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD) from countries around the world which, unlike the US, have ratified the CRPD. A collection of articles edited by members of our author team provides some insight into these debates (Scholten et al. 2021). Our commentary focuses on the problem of undue influence in SDM. The scope of the commentary is restricted to decision-making in the medical context. We argue that the SDM model developed by Peterson and colleagues fails to address adequately the concern that SDM may render people with dynamic impairments vulnerable to undue influence (Craigie 2015; Kohn, Blumenthal, and Campbell 2013; Scholten and Gather 2018). The authors reply to such concerns by saying that they “are not unique to supported decision making, but rather are persistent problems for guardianship and other forms of surrogate decision-making” (Peterson, Karlawish, and Largent 2020, 11). Although this is true, this reply is insufficient because, as we will explain below, SDM arrangements entail an increased risk of undue influence compared to substitute decision-making arrangements (Scholten and Gather 2018). Undue influence can result from either conflict of interest or paternalism. That is, support persons can unduly influence decision-making because they pursue their own interests rather than the best interest of the person concerned, or because they unconsciously project their own views on the best interest of the person concerned. Undue influence is thus not necessarily exerted in bad faith; it can also be exerted unwittingly by support persons with good intentions. Undue influence is undeniably a problem for substitute decision-making, but the risk of undue influence is higher under exclusive SDM arrangements. The explanation lies in an untransparent and potentially unfair distribution of responsibility under such arrangements. Note that substitute decision-makers make treatment decisions on behalf of the person concerned. Decision-makers can accordingly be held accountable for those decisions, which at the same time provides the necessary checks and balances. Support persons, by contrast, merely help beneficiaries to make their own treatment decisions. This means that beneficiaries bear responsibility for treatment decisions no matter how much support they receive. Conversely, this means that support persons who unduly influence treatment decisions cannot be held