Asymmetries of Adolescent Decision-Making Capacity and Rational Choice

Dr Isra Black is a Lecturer in Law at the UCL Faculty of Laws. Previously, he was a Lecturer in Law at York Law School, University of York (2016-2021) and held postdoctoral posts at Karolinska Institutet (2016) and Technische Universität München (2015). He is an Associate Member of the Rotman Institute of Philosophy, Western University and has been a Visiting Fellow in the Department of Philosophy, Stockholm University (2016) and twice a resident researcher at the Fondation Brocher, Switzerland (2013, 2015). He received his PhD in 2016 for research on assisted death at the Centre of Medical Law and Ethics and Dickson Poon School of Law, King's College London.

Abstract

A theoretical reconstruction of functional decision-making capacity tests offers illumination to minor (and adult) mental capacity law. I have two objectives. First, to establish that the relevant doctrines of English law—the MCA 2005, s 3(1) and Gillick competence tests—are best explained by rational choice (or decision) theory. That is, a normative reading of these doctrines takes them to evaluate the instrumental rationality of an individual’s decision—whether an individual’s choice(s) in respect of a matter at a time accord with what she has most reason to do, given her beliefs and values. I argue that the case for associating functional capacity tests and instrumental rationality is easily made out in respect of the MCA 2005 and is plausible in respect of the Gillick test. Second, having made the connection between functional capacity and instrumental rationality, I show that decision theory helps clarify vexed matters of English legal doctrine—asymmetries of minor capacity in respect of adolescent medical treatment: 1) whether capacity is ‘risk-relative’, that is, whether an individual’s capacity to consent is asymmetrical to her capacity to refuse or vice versa; 2) whether there is a distinction between capacity to refuse consent to a treatment option and capacity to refuse all treatment. I show that the risk relative standard of capacity is incoherent on a decision-theoretic analysis, given the centrality of subjective values and given how agents form preference relations. I show that Gilmore & Herring’s defence of the distinction between capacity to refuse consent and capacity to refuse treatment relies on arbitrary adjustments of the information relevant to the decision. However, a principled distinction between capacity to refuse a treatment option and capacity to refuse all treatment is possible to draw in cases for which multiple treatment options are available; but this may be undesirable as a matter of legal policy.