The Empire of Illness: Competence and Coercion in Health-Care Decision Making

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. …