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Debunking four myths about decision-making capacity to keep Britney Spears and others safe

August 9, 2021 by The Conversation

Brit­ney Spears’ impas­sioned remarks in court have raised many ques­tions about con­ser­va­tor­ships, includ­ing when they’re nec­es­sary and whether they effec­tive­ly pro­tect someone’s best interests.

When one los­es the capac­i­ty to make deci­sions for one­self the court appoints a guardian, or con­ser­va­tor, to make those deci­sions. Appoint­ing some­one to make deci­sions about per­son­al and finan­cial mat­ters on another’s behalf has been part of civ­il soci­ety since the ancient Greeks. Today, all juris­dic­tions in the U.S. have con­ser­va­tor­ship laws to pro­tect peo­ple who lack the abil­i­ty to make their own decisions.

As a dis­tin­guished pro­fes­sor of law at the Uni­ver­si­ty of South­ern Cal­i­for­nia, and as a per­son who was diag­nosed over four decades ago with chron­ic schiz­o­phre­nia, I have a per­son­al and pro­fes­sion­al inter­est in issues at the inter­sec­tion of law, men­tal health and ethics. I believe that con­ser­va­tor­ships are war­rant­ed in cer­tain rare cas­es, such as some­one expe­ri­enc­ing severe delu­sions that put them at finan­cial and bod­i­ly risk. But because con­ser­va­tor­ships are a seri­ous intru­sion into a person’s sense of self, they might not always be the best option.

Here are four myths about deci­sion-mak­ing capac­i­ty, and ways to address them.

Myth 1: The inability to make one kind of decision means an inability to make any kind of decision

His­tor­i­cal­ly, lack of deci­sion-mak­ing capac­i­ty was thought of in a glob­al way. That is, the inabil­i­ty to make a sin­gle sig­nif­i­cant deci­sion meant that a per­son lacked capac­i­ty to make all sig­nif­i­cant decisions.

Today, U.S. law tends to view deci­sion-mak­ing capac­i­ty more gran­u­lar­ly. Dif­fer­ent kinds of deci­sions require dis­tinct capac­i­ties. For exam­ple, whether peo­ple are capa­ble of mak­ing deci­sions about their finances is seen as legal­ly sep­a­rate and dis­tinct from whether they’re capa­ble of mak­ing a deci­sion to mar­ry or refuse med­ical treat­ment. Not being able to make one kind of deci­sion may reveal lit­tle about whether some­one lacks the capac­i­ty to make oth­er impor­tant decisions.

Mak­ing “bad” deci­sions, or deci­sions oth­ers do not agree with, is not the same as mak­ing incom­pe­tent deci­sions. Peo­ple, espe­cial­ly those with con­sid­er­able resources, often have fam­i­ly mem­bers and asso­ciates who are eager to pro­vide a court with exam­ples of an individual’s poor deci­sion-mak­ing that may be irrel­e­vant to deter­min­ing competence.

Peo­ple some­times make deci­sions that oth­ers strong­ly dis­agree with. That is their prerogative.

Myth 2: Once someone loses decision-making capacity, it never returns

As some­one who lives with schiz­o­phre­nia, I can say from per­son­al expe­ri­ence that deci­sion-mak­ing capac­i­ty wax­es and wanes. At times, I unques­tion­ably lack the capac­i­ty to make cer­tain deci­sions because I have false beliefs, or delu­sions, about the world and how it works. Thank­ful­ly, those psy­chot­ic states are not per­ma­nent. With prop­er treat­ment, they pass and I soon return to my usu­al self.

Although cer­tain con­di­tions, like severe demen­tia, can per­ma­nent­ly ren­der an indi­vid­ual inca­pable of mak­ing deci­sions, many con­di­tions do not. Research is increas­ing­ly demon­strat­ing that there are ways to help peo­ple regain their deci­sion-mak­ing capac­i­ty soon­er, includ­ing psy­chother­a­py and medication.

Myth 3: People who are declared incompetent are indifferent to having their decision-making abilities taken away

As Spears made pow­er­ful­ly clear in court, being deprived of the abil­i­ty to make impor­tant deci­sions about one’s own life can be one of the most deeply dis­tress­ing cir­cum­stances a per­son can endure. It leaves one feel­ing help­less and unheard, and can rein­force and pro­long men­tal illness.

Con­sid­er what it might feel like to not be able to write a check or use your cred­it card with­out ask­ing for per­mis­sion. Or con­sid­er how a par­ent reacts when an adult child takes away the car keys. In law school I wrote a paper on the use of mechan­i­cal restraints in psy­chi­atric hos­pi­tals based on my own excru­ci­at­ing expe­ri­ences as a patient. On read­ing my paper, a well-known pro­fes­sor in psy­chi­a­try unwit­ting­ly remarked that “those peo­ple” would not expe­ri­ence restraints as he and I would. I’ve always regret­ted not telling him in that moment that my arti­cle was about myself.

For most peo­ple of child­bear­ing poten­tial, the abil­i­ty to make deci­sions about repro­duc­tion is often an impor­tant part of their iden­ti­ty. A state action depriv­ing some­one of the abil­i­ty to repro­duce is incred­i­bly intru­sive, and the stress this caus­es may itself exac­er­bate the con­di­tions that inter­fere with deci­sion-mak­ing capacity.

There are oth­er options that ensure a child’s needs are met while respect­ing the parent’s auton­o­my. One pos­si­bil­i­ty includes hav­ing the par­ent iden­ti­fy indi­vid­u­als who can care for the child until deci­sion-mak­ing capac­i­ty returns.

Myth 4: Mental illness or involuntary commitment to a psychiatric hospital indicates lack of decision-making capacity

Under the law, nei­ther a men­tal ill­ness nor invol­un­tary psy­chi­atric com­mit­ment ren­ders a per­son inca­pable of mak­ing deci­sions. Peo­ple who suf­fer from major psy­chi­atric dis­or­ders may be per­fect­ly capa­ble of han­dling their per­son­al and finan­cial mat­ters and would jus­ti­fi­ably be out­raged if they were declared unable to do so.

Those whose abil­i­ty to make deci­sions appears to be dete­ri­o­rat­ing can des­ig­nate a trust­ed per­son to make deci­sions on their behalf. Sup­port­ed deci­sion-mak­ing allows indi­vid­u­als to choose who they want to help them in deci­sion-mak­ing while they retain the final say. Sim­i­lar­ly, a psy­chi­atric advance direc­tive doc­u­ments an individual’s men­tal health treat­ment pref­er­ences and enlists a proxy deci­sion-mak­er should deci­sion-mak­ing capac­i­ty be lost in the future.

The importance of respecting autonomy

U.S. law hon­ors indi­vid­ual auton­o­my by pre­sum­ing that every­one has deci­sion-mak­ing com­pe­tence unless proved oth­er­wise. There are cer­tain­ly cas­es when someone’s abil­i­ty to make deci­sions is so com­pro­mised that oth­ers need to step in. Con­ser­va­tor­ships are one way to do this. But there are also less restric­tive alter­na­tives that take into account the fact that deci­sion-mak­ing capac­i­ty wax­es and wanes. Keep­ing Brit­ney and oth­ers safe does not mean that they can­not be free to make deci­sions about their own lives.

– Elyn Saks is Orrin B. Evans Dis­tin­guished Pro­fes­sor of Law, Pro­fes­sor of Psy­chol­o­gy, and Psy­chi­a­try and the Behav­ioral Sci­ences at the USC Gould School of Law. This arti­cle was orig­i­nal­ly pub­lished on The Con­ver­sa­tion.

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Filed Under: Brain/ Mental Health Tagged With: Britney Spears, conservatorship, decision-making capacity, ethics, medication, mental health, psychiatric, psychiatric disorders, Psychotherapy, psychotic states, schizophrenia

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