Jennifer Hawkins

The dominant approach to assessing decision-making capacity in medicine focuses on determining the extent to which individuals possess certain core cognitive abilities. Critics have argued that this model delivers the wrong verdict in certain cases where patient values that are the product of mental disorder or disordered affective states undermine decision-making without undermining cognition. I argue for a re-conceptualization of what it is to possess the capacity to make medical treatment decisions. It is, I argue, the ability to track one's own personal interests at least as well as most people can. Using this idea, I demonstrate that it is possible to craft a solution for the problem cases-one that neither alters existing criteria in dangerous ways (e.g. does not open the door to various kinds of abuse) nor violates the spirit of widely accepted ethical constraints on decision-making assessment.

What is the best way to account for the badness of pain and what sort of theory of welfare is best suited to accommodate this view? I argue that unpleasant sensory experiences are prudentially bad in the absence of contrary attitudes, but good when the object of positive attitudes. Pain is bad unless it is liked, enjoyed, valued etc. Interestingly, this view is incompatible with either pure objectivist or pure subjectivist understandings of welfare. However, there is a kind of welfare theory that can incorporate this view of the badness of pain and which is very, very close to being a form of subjectivism. Moreover, this hybrid account of welfare is entirely compatible with the deep motivations of subjectivism. I therefore argue that those who lean towards welfare subjectivism should adopt this account of pain, and that we should revise our understanding of subjectivism to count such theories as subjective.

Mackenzie Graham has made an important contribution to the literature on decisionmaking for patients with disorders of consciousness. He argues, and I agree, that decisions for unresponsive patients who are known to retain some degree of covert awareness ought to focus on current interests, since such patients likely retain the kinds of mental capacities that in ordinary life command our current respect and attention. If he is right, then it is not appropriate to make decisions for such patients by appealing to the values they had in the past, either the values expressed in an advance directive or the values recalled by a surrogate. There are two things I wish to add to the discussion. My first point is somewhat critical, for although I agree with his general conclusion about how, ideally, such decisions should be approached, I remain skeptical about whether his conclusion offers decisionmakers real practical help. The problem with these cases is that the evidence we have about the nature of the patient’s current interests is minimal or nonexistent. However—and this is important—Graham’s conclusion will be extremely relevant if in the future, our ability to communicate with such patients improves, as I hope it will. This leads to my second point. Graham’s conclusion illustrates a more general problem with our standard framework for decisionmaking for previously competent patients, a problem that has not been adequately recognized. So, in what follows, I explain the problem I see and offer some brief thoughts about solutions.

No concept is more important for clear thinking about medical ethics than the concept of well-being or (what I take to be the same thing) the concept of what’s good for a person. Yet for a variety of reasons medical ethicists have generally had little to say about this notion. Medical ethics education, and bioethics more generally, would be better if people learned to think about welfare in a more substantial and structured way. Philosophers would typically approach such a problem by teaching theories of well-being, in particular the “big three”: hedonism, desire satisfactionism, and objective list theories. I argue, however, that these theories are not helpful in the context of practical ethics. I develop an alternative approach to thinking about welfare in practical ethical contexts. It is philosophically informed yet avoids discussion of the “big three” theories. I call it the “theory- without-theories” approach. It has two elements. First is a focus on examining important and relatively uncontroversial constituents of welfare. These elements can be introduced and their nature questioned and probed without invoking general theories. The second key element is a framework for thinking about choice in relation to welfare, a framework that I refer to as “the mild objectivity framework.” I aim to convince readers, first, that the standard philosophical approach will not work in the practical context, and second, that the theory-without- theories approach will.

This chapter explores radical personal change and its relationship to well-being, welfare, or prudential value. Many theorists of welfare are committed to what is here called the future-based reasons view (FBR), which holds (1) that the best prudential choice in a situation is determined by which possible future has the greatest net welfare value for the subject and (2) what determines facts about future welfare are facts about the subject and the world at that future time. Although some cases of radical change are intuitively prudentially good, many cases of really radical change are not. Yet FBR has trouble explaining this. Many people instinctively reach for the notion of identity to solve this problem—arguing that really radical change cannot be good because it alters who someone is. Yet, as the chapter argues, there are reasons to doubt that appeals to identity are appropriate. The chapter ends with the suggestion that prudential facts may explain why and when retaining identity matters, rather than the other way around, and points to a possible way forward for a theorist of welfare committed to FBR.

I consider the current best interests of patients who were once thought to be either completely unaware (to be in PVS) or only minimally aware (MCS), but who, because of advanced fMRI studies, we now suspect have much more “going on” inside their minds, despite no ability to communicate with the world. My goal in this chapter is twofold: (1) to set out and defend a framework that I think should always guide thinking about the best interests of highly cognitively compromised patients, and then (2) to defend a particular conclusion that applies to this specific patient population. The framework requires us to ask two questions: Is the individual suffering? Is the individual gaining any benefit from life? There must be benefit of some sort for life to be worth preserving, and the benefit must outweigh any suffering (if there is suffering present). I then argue it would be best overall to allow these patients to die. Either these patients are not really very aware at all, in which case they are most likely not suffering, but not benefiting from life either, or they are mentally intact enough to make benefit a theoretical possibility, but in fact they are not benefiting because they cannot communicate with anyone. Such patients would most likely suffer. As there is no way currently to address their suffering, we should allow them to die. No matter the truth about their cognitive lives, death would either be a neutral event, or a blessing.

Most philosophers assume that more matters for well-being than simply mental states. However, there is an important distinction that is routinely overlooked. When it is said that more matters than mental states, this could mean either that certain mind- independent events count when it comes to assessing the prudential value of a life or it could mean that it is prudentially important for individuals to have the right kind of epistemic relation to life events. Here I aim to convince theorists of the importance of distinguishing questions about which non- mental objects (or events or facts) have intrinsic welfare value (if any do) and questions about which epistemic relations (knowledge, justified true belief, true belief) have intrinsic welfare value (if any do). This chapter also raises serious doubts about the way in which contemporary desire theories handle the extra-mental components of welfare, and offers some tentative answers to the question: What should a theorist of welfare say about these matters?

Existence internalism claims that facts about human psychological responsiveness constrain the metaphysics of value in particular ways. Here I examine whether some form of existence internalism holds for prudential value (as opposed to moral or aesthetic value). I emphasize the importance of a modal distinction that has been traditionally overlooked. Some facts about personal good are facts about realized good. For example, right now it may be true that x is good for me. Other facts about goodness are facts about what would be good for me in certain possible futures. These are facts about merely possible good. Philosophers should be internalists about realized good. I defend a qualified version of the idea that a necessary constraint on something's being good for a person at a time is that the thing in question elicit some kind of positive psychological response from the person at that time. However, philosophers should be motivational externalists about merely possible good. Facts about the superior future goodness of an option may ground reasons now to choose it. But we should not expect individuals to always recognize such facts, and so there is no reason to think such facts are always motivating.

This article is a reply to an article by Jennifer Radden in which she argues that given certain unusual features of anorexia nervosa, it may simply not be possible to justify paternalistic intervention with such patients, even to save their lives.  In other words, we may simply have to accept that even when their practices of restricting food intake result in dangerously low body weights, their decisions must be honored in the same way that we honor preferences of other competent adults. What makes anorexia unique is the fact that many, perhaps most, adult persons with anorexia satisfy the criteria for decision-making capacity at most points in their illness. However, while it is true that it is much harder to justify intervention with competent patients, it is not impossible to offer such justifications. Here I argue that it is possible to justify limited paternalistic intervention with such patients without departing from basic liberal values.