Personal identity is the philosophical penumbra in which capacity must be assessed

Abstract

Summary There is a temptation in the clinical world to transform capacity into a technical concept that can be tested objectively, usually by calling for a psychiatric consult. This is a classic example of medicalization. In this article, I argue that this is a mistake, not just unnecessary but wrong, and explain how to return capacity assessment to a normal part of the medical encounter. Part of how many physicians started down this path was from confusing the concepts of competence and capacity. While returning to a less technical approach to capacity assessment may seem like it should not be difficult, a tremendous amount of scholarship confusing competence and capacity has given many physicians the false opinion that psychiatry is needed for a capacity assessment, and it has become a commonly accepted hospital practice or even policy in some hospitals to request psychiatric consultation to assess a patient's decision-making capacity. The goal of this article is to return the concept of capacity to its proper historical origins in patient's rights, informed consent, and the philosophical idea of authenticity. Thus, in this chapter, I argue that personal identity is essential to the concept of decision-making capacity. Personal identity is a notion of continuity of core values and personality; consistency over time. One doesn’t act a certain way because one remembers being that way in the past, or because you can give reasons to be that way, but because acting that way comes naturally to that person as a reflection of her beliefs and values. It is a decision that represents the patient's authentic self, or reflects his (or her) true self. Hence capacity assessment, if properly understood, does not require a scientific test of a properly functioning inner psychological process, or of accurate memories of past events or actions, but a humanistic social interpersonal interaction to ascertain personal identity or consistency over time. Thus, personal identity is more important to capacity assessment and informed consent than either memory or reasoning ability. This leads to interesting results, such as the person best able to assess a patient's capacity must be someone who knows the patient's past, including (but not limited to) past medical decisions. Hence, a primary care doctor or a family member may be the best person to consult, rather than a psychiatrist meeting a patient for the first time. And there might be reason to encourage ethics consultants to include capacity assessment as a professional skill for some cases as well.