Interestingly, reading Demian Whiting’s paper I see that I got the emphasis wrong rather more than the structure. Sometimes in philosophy, however, emphasis is crucial.
More than I’d wanted to present it as, the paper is a direct reply to another paper by Jacinta Tan and others which does argue that, in cases of anorexia, pathological values undermine the capacity to make treatment decisions, even though the standard tests of capacity are passed [Tan J., Stewart A., Fitzpatrick R. and Hope T. (2006) ‘Competence to make treatment decisions in anorexia nervosa: thinking processes and values’ Philosophy, Psychiatry and Psychology 13:267-282]. That implicit dialogue affects where the weight of the argument lies in Whiting’s paper and this is explicit in his abstract:
Decision making capacity (DMC) is normally taken to include: (1) understanding (and appreciation); (2) the ability to deliberate or weigh up; and (3) the ability to express a choice. In an article published recently in PPP, Jacinta Tan and her colleagues suggest that DMC requires also (4) the absence of ‘pathological values’ (i.e. values that arise from mental disorder). In this paper I argue that although (1)–(3) might be necessary for DMC, (4) is not necessary (barring cases where pathological values interfere with (1)-(3)). My argument will simply be that (4) fails to be supported by the empirical data provided by Tan et al, which I claim supports the view that people with pathological values do often have DMC. I also consider but reject the claim that pathological values entail incapacity because they are not ‘authentic’ to the person. I conclude that the absence of pathological values does not comprise an additional element of DMC and that we cannot justify compulsory treatment of people who have (1)–(3), but not (4), on the grounds they lack DMC. [Whiting, manuscript]
Thus the main argument for the claim that pathological values do not undermine capacity unless they undermine the component tests (points 1-3, above) takes the form of pointing to empirical descriptions of subjects with anorexia (rather than dealing with the dilemma as I’d thought).
The main worry, as I see it, with the view that patients with pathological values have compromised DMC even in cases where they possess (1)-(3) is simply that it fails to be supported by the empirical data, which, in my view, supports the position that such patients do possess DMC. Indeed the patients interviewed by Tan et al serve only to illustrate that point, as patients when described as possessing (1)-(3) appear to be very able to engage in the decision making process (see, e.g. Tan 2006:271). After all they are able to understand the nature of the treatment proposed, to deliberate regarding the risks and benefits of not eating or losing weight, and, on the basis of their deliberation, to arrive at and communicate a decision. [ibid]
Whiting goes on to say that they make different decisions to ones they would have made without the values (which is uncontentious) but in so doing they are still exercising a decision making capacity. This means that what I took to be merely stage setting is actually the main argument. Tan et al have provided, Whiting thinks, enough material to undermine their own case.
Thus what I took to be the main argument is now a piece of mopping up and the dilemma discussed is motivated by something that Tan et al actually say:
If a value or value system can be clearly determined to arise from a mental disorder rather than the person, then this value cannot be seen to be authentic to the person himself or herself, and, if it affects treatment decision making, should be considered suspect in terms of compromising competence. [Tan et al 2006:278]
I got the treatment of dilemma two thirds right (I think) but the discussion of the second horn has, in addition to the, as it were, ‘anti-existential’ (not his phrase) point this further and more significant argument:
[E]ven if we put this [ie the ‘anti-existential’] worry aside, it is clear that (B) [the 2nd horn of the dilemma] constitutes no reason for thinking that patients with pathological values have compromised DMC. This is because (B) only begs the question at issue. For the question at issue is: why should we hold that values that have been caused by mental illness compromise DMC? And that question clearly cannot be answered by replying that those values are the responsibility of the mental illness, not the patient, which, according to (B), is precisely what we would be saying if we answered that question by replying that those values are not authentic to the patient. [Whiting, manuscript]
We would need to be told more about why a value stemming from an illness was not a value held by the subject. My hunch is that, additionally, the fact that someone has passed points 1-3 of a capacity test itself puts pressure on answers to this. If the values have not undermined the test, why think that they are, in some more direct sense, intrinsically pathological and capacity undermining. Since Whiting is replying to Tan et al, if they have not substantiated this point, then he has done enough.
This makes thing much clearer to me and I like the paper even more than I thought.
I guess my lingering question (aside from doubts about how much capacity tests can be distinct from tests of wisdom) is whether nothing more could be said about how values might be directly pathological (independent of their undermining general decision making capacities). Couldn’t one imagine a case where, through a discrete process, a subject suddenly acquired a small set of values inconsistent with their general commitments but which remained stubbornly outside their rational control? Such surd values would be ones that resisted integration into the rest of a worldview despite their incompatibility. Perhaps they could be induced through hypnosis, illness, cult-membership or whatever. If so, wouldn’t that count as pathological and not merely as an unusual way of acquiring values (even given that values are never fully autonomously chosen)?
Now one might think that this would undermine capacity because it would undermine an ability to weight up evidence in which case it wouldn’t be a problem for Whiting. And in his helpful email yesterday he commented:
I agree that pathological (or even ‘radically surd’) values might often entail that patients weigh information DIFFERENTLY than if they did not have such values, but disagree that this means they fail point 3 on your competence test, as they are able to weigh up information (albeit differently than if did not have such values).
But I am not sure I’m happy to think that, if there were mechanisms by which surd values could be introduced into my thinking, that I would subsequently merely be reasoning autonomously but differently. Surely the process would undermine my capacity to make genuine decisions in those areas related to their specific domain of application even if – unlike the case of rash alcohol induced values, eg. – no general decision making capacity were affected?
Of course my worry now is that my reactions to this example and to John McMillan’s fear example seem directly opposed. Thus I worry that this is itself evidence of the induction of surd and hence pathological values through the influence of philosophy.