Patient incompetence in the practice of old age psychiatry: the significance of empirical research for the law

Sander Welie

in Empirical Ethics in Psychiatry

Published on behalf of Oxford University Press

Published in print February 2008 | ISBN: 9780199297368
Published online February 2013 | e-ISBN: 9780191754586 | DOI:

Series: International Perspectives in Philosophy & Psychiatry

Patient incompetence in the practice of old age psychiatry: the significance of empirical research for the law

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In this chapter I have argued that the empirical study of how health practitioners behave can play an important part in enhancing legal analysis. I have illustrated my argument through describing an empirical study that I carried out in the area of the assessment of patient competence to consent to treatment. The aims and design of the study were the result of initial legal analysis. But the aims changed in the light of the results of the first part of the study, and the results overall then elicited further legal analysis. I distinguished three different approaches to the relationships between legal analysis and empirical research. The approach that developed from the empirical study, I have called ‘systematic apology’.

A crucial phase in systematic apology is the critical re-examination of generally recognized sources of law. The sources of law cover a broad domain, including not only positive statutory law, but also legal doctrine and juridical principles, among other things. This has the advantage of offering plenty of legal material to tap. Law has a history of more than 4000 years (Cuneiform Law 2004), in which an abundance of concepts and arguments can be found.

A disadvantage, however, of this is that the demarcation of which legal elements can reasonably be seen as applicable to a specific context, is vague. When studying the legal literature, for example, there are no objective criteria for ascertaining which authors are authoritative, nor even for ascertaining whether authors should be classified as contributing to legal doctrine or as formulating ethical theories.

Systematic apology is a heuristic method for articulating legal arguments in defence of some of the practitioners’ behaviour. It requires the researcher to be prepared to re-examine critically the sources of law in the light of empirical results that at first sight suggest that practitioners do not act in accordance with legal concepts or rules.

The method under discussion is not only a way of differentiating legal views among health lawyers and as such an academic instrument to develop the domain of health law; it is also interesting for clinicians because it gives them a lego-political voice, not in the sense of defending any behaviour a health care professional might display, but in the sense of translating practical rationality and rational practices into legal terms. The implications for clinical practitioners of using the empirical method of systematic apology are very different from those of evidence-based medicine. In the latter, reportedly ineffective health care interventions are ruled out as options for the practitioner. Thus the practitioners’ discretionary power is reduced. In the former, the practitioners’ power is enhanced by having their input inform the legal discourse.

A practical advantage of the use of systematic apology as a means of developing the legal model is that health care professionals will identify more easily with the ensuing development of the legal model. This should help such professionals be more sensitive to, and better able to deal with, legal aspects of their relationship with patients and their representatives. Since health care professionals can directly contribute to a realization of patient rights through their day-to-day contacts with patients, this sensitivity would be a move in the right direction of improving patient's rights. In that way, the juridificative, bureaucratic tendency to formulate ever more legal regulations and procedures with ever less ‘healthy’ effect in professional care for patients, can be counterbalanced.

Chapter.  6953 words. 

Subjects: Psychiatry

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