Los Angeles, California, United States. June 23, 2021: #FreeBritney rally at LA Downtown Grand Park during a conservatorship hearing for Britney Spears.

There’s More to Decision-Making Capacity than Cognitive Function

The Health Law, Policy, Bioethics, and Biotechnology Workshop provides a forum for discussion of new scholarship in these fields from the world’s leading experts. Though the Workshop is typically open to the public, it is not currently, due to the COVID-19 pandemic. However, many of our presenters will contribute blog posts summarizing their work, which we are happy to share here on Bill of Health.

By James Toomey

The doctrine of capacity is a mess.

From Britney Spears’s high-profile struggles to establish her own capacity to the countless, quiet challenges of so many older adults, the doctrine of capacity, which requires people to have the cognitive functioning to understand the nature and consequences of a decision in order for it to be recognized in law, is vague, normatively and medically challenging, and inconsistently applied.

This is a big deal — at stake in every capacity case is whether, on the one hand, an individual may access the legal rights most of us take for granted, to enter into contracts, buy or transfer property, or get married or divorced; or, on the other, whether the legal system will ratify a decision the “real person” never would have made.

In my most recent paper, forthcoming in the North Carolina Law Review, I argue that the doctrine of capacity has failed because of a profound philosophical mistake.

The doctrine is based in the philosophy of personhood — the body of philosophical work about what makes us persons, or entities entitled to the highest levels of moral respect. It follows most contemporary theories in basing personhood on a certain level of cognitive functioning. If you are a person, understood by reference to your cognitive abilities (so the logic of the doctrine goes), you are entitled to have your decisions recognized by the law.

But whether you are a person is not the only thing that matters to whether you may make a particular decision. After all, if you want to sell property, it matters whether you own it, a question of whether you are the same person that became owner at some other time. This is a question of the philosophy of personal identity — of what makes us the same person across time, not what makes us persons at all. And indeed, my empirical work suggests that seniors think of when the law should intervene in their decision-making in terms of personal identity, not only their personhood.

In the past forty or so years, there has been a remarkable consensus emerging in a variety of fields, from philosophy to psychology to anthropology, that personal identity is constituted by the stories of our lives, that we are ourselves over time because we make sense of ourselves in a cohesive narrative form. This is called the narrative theory of personal identity. The research suggests it is a universal, evolved fact of human psychology. And it is an ethically significant one — indeed, the stories of our lives are how we make sense and meaning out of our lives.

Based on the narrative theory of personal identity, I propose a new doctrine of capacity that recognizes the importance of who we are to our decision-making, understood with reference to the stories of our lives.

In short, people would be entitled to make any decision that follows in a narrative structure from the story of their lives so far, but the law would decline to recognize decisions without a narrative cause.

In the paper, I analyze the literature in narrative theory, philosophy, and psychology to build a definition of narrative structures that can guide litigation — a story is an intentional, intelligible, coherent chain of causation thematically related to the past and future of an individual’s life.

Now, because you must be a person to be the same person you were, it may seem that a doctrine grounded in personal identity could only find decision-making capacity in fewer cases than we do now. But this isn’t so.

Although the doctrine of capacity is based in the philosophy of personhood, the tests for decision-making capacity in law and personhood in philosophy are not identical. Indeed, the doctrine of capacity — which requires people to understand specific, often complex decisions — demands much higher levels of cognitive functioning than most theories of personhood. That is, under current law, you could have the cognitive function required to be a philosophical person but not have the capacity to make specific decisions.

Under my proposal, we would lower the backstop of cognitive personhood to its actual philosophical threshold. We could use cognitive testing to conclude that someone may not make a particular decision (not being a person is sufficient to conclude one is not the same person), but only when they are so far gone that they may no longer be a person at all under whatever specific theory of personhood we ultimately agree upon.

When we think about whether Britney Spears, or anyone else with serious mental illness or other forms of impaired cognition, such as dementia, ought to be permitted to make a particular decision, we necessarily look to far more than their momentary cognitive functioning. Indeed, we inevitably look to who they are, to the story of their lives.

It is time for the law to recognize this. In short, we ought to have a doctrine of capacity that recognizes who you are, not merely that you are.

James Toomey

James Toomey is a Climenko Fellow and Lecturer on Law at Harvard Law School. His research focuses on bioethics, health law, and elder law. His scholarship has been published or is forthcoming in the Journal of Law and the Biosciences, the Elder Law Journal, and AJOB Empirical Bioethics.

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