traditionally treated voluntariness in an external fashion—as the absence of force, coercion or undue inducement—they ... ethically valid an individual’s consent must be properly informed and free of external coercion (Faden & Beauchamp ... of a choice ) and more plausible threats to voluntariness such as addiction. The difficulty is precisely ... Below is a presentation of the most basic and agreed upon elements and an explanation of how these have come to be understood in practice. 4.1 Choice Choice is short for “the ability to express or communicate one’s choice”, and it is the simplest and least mental element of capacity. Indeed, its simplicity and obviousness may explain why some authors do not include it. To see that such an ability is necessary one needs only to imagine a case where understanding, appreciation and reasoning are all intact, but where the subject has no way to express or communicate her intended decision. Most theorists seem to agree that possessing these four abilities, at least to some degree, is necessary for capacity. The primary issue (explored further in §6 ) is about whether the four abilities are always sufficient or whether there are cases in which something else, some further abilities or some further feature of the subject’s choice, might be relevant to the assessment of capacity. The three elements most commonly cited by critics are (1) the subject’s emotions, (2) the subject’s values, and (3) the authenticity of a subject’s choice. 5. 5.1 Inclusivity The inclusiveness constraint derives entirely from the needs of practice. No matter what theory of decisional capacity we develop, it must turn out that most ordinary adults count as having capacity most of the time (Buchanan & Brock 1989: 21; Appelbaum 1998). In other words, as a society we are morally committed to imposing minimal restraints on individual choice. Most people are free to make most choices in their lives for themselves, even including self-harming choices. Relying on what many people view as rational (in some broad, non-internal sense of rational) or on what many people view as “a significant harm” will not offer sufficient protection for competent adults with unusual values. If our goal is to ensure that mentally intact individuals are free to pursue their own idiosyncratic and at times unpopular values, then we must avoid building into our account of capacity any specific requirements on choice. To do so is to risk allowing majority values to limit the free choice of others in inappropriate ways by ruling too many people incompetent for the wrong reasons. These days clinicians and others working in clinical settings take it as axiomatic that clinicians should not conclude that patients lack decision-making capacity just because they make a decision contrary to medical advice. (Ganzini 2005: S101) Moreover, discussions of capacity assessment tend to assume (contra Culver & Gert) that the only safe way to avoid this problem (the problem of equating disagreement But if that was our only societal value we would not bother to assess capacity but would simply honor any choice that a patient made (as long as she could express it). That we don’t do this demonstrates that we also clearly value patient welfare and recognize that as mental capacities become more and more compromised the risk to welfare posed by free choice increases. From the start then, setting thresholds for decision-making capacity is an exercise in trying to strike the right balance between giving people as much freedom as possible while protecting the most vulnerable among us. The asymmetrical approach to decisions simply extends this basic idea—this desire to balance concern for autonomy and protection of welfare—further. Once we recognize that choosing one way can place welfare at much greater risk than choosing the other way, it makes sense to strike the autonomy-welfare balance differently for each prong of the choice. Since welfare is more at risk in one case than the other, we set the threshold for selecting that option higher (thereby slightly reducing the chance that the subject will be free to make it). The criticisms examined below all appeal to cases that the critics take to be obvious examples of incapacity, but which the four abilities model seems to classify as cases of capacity. Most theorists seem to agree that possessing the four abilities, at least to some degree, is necessary for capacity. The primary issue is about whether the four abilities are always sufficient or whether there are cases in which something else, some further abilities or some further feature of the subject’s choice, might be relevant to the assessment of capacity. A Different Kind of Challenge: Voluntarism Informed consent requires that a patient be able to make a meaningful decision for herself. But this is just the pre-requisite. If the individual has capacity then he or she must be given all relevant information, and then he or she must make a free or voluntary decision . Voluntariness is complicated terrain, and most of the discussion of voluntariness in informed consent has focused on the sorts of illegitimate behaviors by other people that can undermine voluntariness: force, coercion (threats) and undue inducement (Hawkins & Emanuel 2005). For example, Appelbaum, Lidz, and Klitzman (2009) set out to chart the domain of voluntariness, but ended up focusing exclusively on external factors such as coercion and undue inducement. They are explicit that since the law has traditionally treated voluntariness in an external fashion—as the absence of force, coercion or undue inducement—they have sought to explain only these kinds of phenomena. However, this begs the ethical question of whether there really might be internal barriers to meaningful choice and if so, whether the law ought to recognize them even if it currently doesn’t.

Anglo-American courts for two hundred years: the test of voluntariness . Is the confession the product of an essentially free and unconstrained choice by its maker