Free will and psychiatric assessments of criminal responsibility: a parallel with informed consent

In this section I will briefly present the complicated philosophical issues concerning free will.⁷ The purpose of this section is to show that, indeed, there is a serious philosophical free will problem.

To start with, there is no consensus among philosophers on how to define free will. Walter (2001) distinguishes three main aspects or components of free will in the present philosophical debate. The first component is, that to be free one must be able to do otherwise. Second, to be free means to act or choose for an understandable reason. And, third, freedom requires that one is the originator of one’s actions. A large part of the current philosophical discussion on free will is concerned with the question to what extent these three aspects really are essential to the concept of free will (Walter 2001) For instance, many philosophers currently believe that having alternative possibilities is in fact not a requirement for free will or moral responsibility (Widerker and McKenna 2003; Kane 2002). In this paper I will not take a specific position on how to understand free will. The philosophical unclarity about its definition is a fact, and the paper is about dealing with the unclarity in forensic psychiatry, not trying to solve it philosophically (see also Meynen 2009a).⁸

Although there are profound problems attached to defining free will, another problem appears to be even more pressing. For philosophers have not been able to figure out whether or not free will is compatible with a deterministic world (Kane 2002; Searle 2007). Determinism is, briefly, the thesis that whatever happens is inevitable or necessary, either by fate, or by the will of God, or by the laws of nature (Kane 1998, 2002). Some believe that the everyday world in which we live is governed by deterministic natural laws (Kane 1998). Philosophers have not been able to establish whether in such a world free will can actually exist. And the discussion on the possible existence of free will is not only waged among philosophers, also (neuro)scientists are participating in the debate (Kawohl and Habermeyer 2007; Walter 2001; Kane 2002; Gazzaniga 2005). In addition, we have to note that not only determinism, but also indeterminism appears to be problematic for free will. For what room would be left for free will, if everything happened by chance? (Kane 2002) But this issue, somehow, is less prominent in the philosophical debate (Kane 2002).

In general, there are three main philosophical positions on the compatibility of freedom and determinism: compatibilism, hard determinism and libertarianism (Kane 2002). Briefly, hard determinists not only hold that free will and determinism are incompatible, they also consider determinism true, and, therefore, they deny free will. All events relate to each other like billiard ball collisions. Libertarians have the opposite view. Although they agree that freedom and determinism are incompatible, they affirm free will, and, therefore, consider determinism false. The deterministic chain of events is broken, at least at some points in time, they say. Compatibilism, the most popular position, holds that even in a deterministic world there can still be significant freedom—free will “worth wanting”, as Dennett puts it (Dennett 2003). These three philosophical positions have basically existed for centuries. To the philosopher Searle (2007) the persistence of the problem of free will seems ‘something of a scandal’ (Searle 2007), because no substantial progress on this problem has been made. And, on Searles account (2007), no solution is in sight: “The problem of free will is unusual among contemporary philosophical issues in that we are nowhere remotely near having a solution” (see also Meynen 2009a).

As it appears, psychiatrists cannot expect philosophers to provide them with a solution anytime soon.

Given this state of affairs it may be understandable that people feel uncomfortable when forensic assessment is understood in terms of ‘free will’. For instance, when Stone in a paper on forensic psychiatry says about the issue of “determinism v. free will” that it is “relevant to every question of volition and responsibility” (Stone 2008). Forensic practitioners also may feel uncomfortable when Kawohl and Habermeyer (2007) write that “the psychiatrist as an expert witness is forced to find a practical way to deal with the existence of the critical term free will”.⁹ Since philosophers do not agree on what free will is, and whether it exists, this engagement in philosophical discussions could even undermine the reliability of the forensic assessment. Yet, not all forensic experts and theorists are convinced that free will is central. For instance, Morse (2007) has argued, aware of the metaphysical complexities surrounding free will, that it is confused to consider free will vital or even relevant to forensic assessment. For no legal doctrine or legal document (in the USA) explicitly mentions that free will is implicated. And, in order to avoid confusion, the best thing forensic psychiatrists can do is to stop thinking about free will.¹⁰ It is safe to say that at this moment there is no consensus on the relevance of (the metaphysics of) free will to the forensic assessment. We could, of course, try to device a conclusive argument either showing its relevance or its irrelevance. Yet, this is not my approach in this paper. I will propose a way to deal with ‘free will’ in forensic psychiatry in the absence of such a conclusive argument or consensus.¹¹

In the remainder of the paper I will try to show that even if free will is considered relevant, forensic experts and researchers do not necessarily have to feel obliged to engage in metaphysical discussions in order to clarify the nature of the assessment. In the next section I will link assessments of criminal responsibility to the practice of obtaining informed consent. Via this link, I will arrive at a suggestion how to deal with the issue of ‘free will’ in forensic psychiatry.

I will give a few examples of ‘free will’ or ‘free choice’ in literature on informed consent. As Simon (2005) puts it, rational decision making about treatment occurs when a patient’s consent to treatment “reflects” that patient’s “freedom of choice”. According to Welie and Welie (2001), patients can only be considered competent and responsible for the decisions on treatment they make, if they were “free and able to reach a different decision”. Paterick et al. (2008) state that, “to give valid informed consent, the patient must be competent and the patient’s actions must be voluntary. Voluntary means “of free mind and free will.” And Pinals and Appelbaum (2002, p. 479) write that: “Generally, informed consent, whether to research or treatment, is broken down into three parts: voluntariness, disclosure, and competence. Voluntariness implies that research subjects must be acting of their own free will when they agree to participate in research.” Finally, Roberts (2002) emphasizes the importance of voluntarism, which she defines as “ideally encompassing the individual’s ability to act in accordance with one’s authentic sense of what is good, right, and best in light of one’s situation, values, and prior history. Voluntarism involves the capacity to make this choice freely and in the absence of coercion.” In other words, notions of “free will” and “free choice” are considered tightly connected to (the concept of) informed consent.¹²

Since the concept of freedom is present in conceptual reflections on obtaining informed consent, also this medical practice is, in principle, not immune to philosophical discussions on free will. For instance, we could ask ourselves: could a patient make a ‘free’ decision about treatment—and therefore give genuine informed consent—in a deterministic world? This question has a comparable form as the question: can we ascribe accountability to a person in a deterministic world? Yet, this type of questions has not really troubled researchers on informed consent.

In principle, it could be that the metaphysics of free will have not penetrated discussions on competence because nobody is interested in the conceptual background of this assessment.¹³ But this is, certainly, not the case. Many efforts have been undertaken to achieve conceptual and operational clarification with respect to informed consent (Appelbaum 2007; Welie 2001). As a result of these efforts, it has been possible to propose specific criteria, like the criteria for competence to consent to treatment (Appelbaum 2007). In addition, scales have been developed to assist physicians in examining a person’s competence to consent to treatment, especially the MacArthur (MacCAT) scale (Grisso et al. 1997). Surely, there remains unclarity about the criteria for competence, and there is at present no ‘gold standard’ that tells a physician what competence is (Appelbaum 2007; Spike 2008). Yet, using the criteria and using the MacArthur scale valuable clinical data have been obtained (see, e.g., Owen 2008). Although the MacCAT scale may be the most widely used in research on informed consent (Jeste et al. 2006), it is not known exactly to what extent in everyday clinical practice this tool or the Appelbaum (2007) criteria are being used. In this respect it might also be noteworthy that, as Welie observed (2008, p. 87) in an empirical study on competence in a relevant health care setting, “the issue of patient decision-making competence was not a topic of debate or discussion at all among the observed health care professionals.”

Meanwhile, with respect to the forensic assessment it has turned out to be difficult to achieve such conceptual and practical progress, and there are concerns about the lack of clarity of the assessment (Murrie and Warren 2005; Barendregt et al. 2008; Rogers and Shuman 2005; Henderson 2005). In part, forensic efforts for conceptual elucidation have been absorbed by discussions on (the relevance of philosophical worries on) free will (Morse 2007; Felthous 2008).¹⁴

In conclusion, there is a significant parallel between the two medical practices: both are considered to be related to notions of ‘freedom’, ‘free will’, or ‘choosing or acting freely’.¹⁵ Meanwhile, there is a significant difference with respect to the extent to which research on these practices has been absorbed by metaphysical concerns about free will (and determinism). In addition, there is a difference with respect to the level of conceptual and practical elucidation that has been achieved in both practices.¹⁶

In the next section, I will explore what could be considered to be the ‘potential’ of the parallel.

As it appears, in research on informed consent it has been possible to work effectively on conceptual and operational clarification, without either denying the relevance of freedom to informed consent, or adopting an explicit metaphysical stance on the compatibility of freedom and determinism.¹⁷ If we translate this to the forensic assessment, we could argue that even if freedom is considered to be involved in the forensic assessment, (the metaphysical problem of) freedom does not have to be approached ‘head-on’ in order to achieve certain conceptual and operational elucidation of this assessment. In other words, forensic psychiatry may not need to adopt a specific stance on the metaphysical issue of free will and its relevance to the assessment. Surely, solving the metaphysical problems could be of (great) help, but as it appears, this could take a while. Based on the parallel, I am pointing to the possibility that some relevant progress can be achieved with respect to the psychiatric assessment, even if ‘free will’ is not (philosophically) addressed.¹⁸ In my view, this practical argument could be helpful in deciding how to deal with the issue of free will in forensic research.

Certainly, there are also relevant differences between forensic assessment and assessments of competence (for an exploration of differences and similarities between these assessments see Meynen 2009b). These are for a large part related to the fact that while forensic assessments are performed in a juridical environment and related to an offence, assessments of competence are performed in a medical environment related to choosing a treatment option. Therefore, also the consequences of the assessment may differ: punishment (in case of forensic assessment) and treatment (in case of assessments of competence). In addition, due to the nature of forensic assessment, in which the court has to be informed, in forensic assessment there is not the kind of confidentiality which exists in the normal doctor patient relationship (Gutheil 2005). However, both are medical assessments—in which psychiatrists are often considered experts—on capacities of a person which are considered to be related to ‘free will’, ‘free action’ and ‘free choice’. This is the similarity or parallel I want to bring forward in this paper.

Based on these considerations, I argue, forensic researchers could justify avoiding the philosophical issue of free will. This is not because the matter would be irrelevant, or because the metaphysical problems would have been solved, but because research on a medical practice which is considered to be related to free will, apparently does not have to deal with free will head-on in order to achieve relevant progress. My suggestion does not require that we consider free will irrelevant in the forensic assessment. Yet, we do not have to feel forced into a possibly fruitless metaphysical discussion on free will in order to achieve some clarification of the forensic assessment.

Still, I do feel that there is something more to be learnt from research on informed consent.¹⁹ For I have approached this kind of research mainly in a negative way: looking at what it has not been doing (getting into metaphysical debates on free will). But what type of research has been performed?

Much of the research on informed consent can be characterized by an ‘empirical ethics approach’ (Candilis et al. 2008). Perhaps, this type of research, which I will briefly discuss in this section, could also be helpful to forensic psychiatry.²⁰

Empirical ethics may take many forms (Eastman and Starling 2006; Widdershoven et al. 2008). In general, it aims, alongside ethical theorizing, to obtain specific qualitative empirical data. It can do so via different methods: observations, interviews questionnaires, etc. (Widdershoven et al 2008). Empirical ethics has been a helpful approach to many complicated, normative medical issues, like questions about end-of life decisions, and also competence and informed consent (Widdershoven et al. 2008; Eastman and Starling 2006). In my view, the assessment of criminal responsibility has comparable features: being complicated, normative, and medical in nature.²¹

One approach in empirical medical ethics, so called stakeholder dialogue, tries to unite different stakeholders around a conceptual or normative issue. In this type of study, as Widdershoven et al. (2009) point out, it is essential that “data are gathered, not about participants in practice, but together with practitioners (…).” Via such a dialogue, in which several stakeholder groups participate around a (complicated) normative topic, mutual understanding between different stakeholder groups can also be enhanced (Widdershoven et al. 2009). Especially because of the profoundly interdisciplinary terrain of forensic psychiatry, it is important that the method used can lead to an outcome that is likely to be both relevant and acceptable to the different parties involved.²² This could be a reason to consider stakeholder dialogue. Stakeholders with respect to assessments of criminal responsibility are, among others, judges, lawyers and psychiatrists. An important characteristic of empirical (medical) ethics in general is that it is familiar with research at the interface of medicine and law (Eastman and Starling 2006).

The question can be raised whether, given certain similarities between the assessments of competence and criminal responsibility (see also Meynen 2009b), there could be a direct translation of the criteria for informed consent to the context of forensic assessments. I do not want to exclude this possibility, yet, for instance concerning the Appelbaum criteria, each of them should be considered carefully with respect to the (practical) relevance and helpfulness in forensic settings. I rather suggest to consider the methods of empirical ethics in general as potentially helpful, than to propose a direct translation of, e.g., the MacCAT (see also Hondius 2009).

Recent research that, perhaps, could also be valuable within the framework of ‘empirical ethics’, is the approach by Barendregt et al. (2008).²³ They studied empirically the factors on which forensic experts actually base their judgements concerning criminal responsibility. They motivate their approach saying that many papers addressing criminal responsibility focus on what “forensic experts ought to include in evaluating a defendant’s criminal responsibility”, but that in spite of these papers there is “hardly any consensus on what constitutes grounds for (diminished) responsibility”. Barendregt et al. (2008) found that experts’ judgements were not only based on the presence or absence of mental disorders, but also, e.g., on cultural and crime related characteristics, like the weapon used, or whether the act was committed alone or with others. Also from this type of research indications may be obtained for further elucidation of forensic assessment. Meanwhile, such research should not result in direct consequences for forensic assessment. It could rather deliver relevant new input data for the debate/dialogue among stakeholders about what it is that forensic assessment has to focus on. Still, surely, the factors that actually play a role in the assessment are not necessarily the factors that should play a role in the assessment.²⁴ Yet, my proposal is not meant to eliminate all possible (conceptual) problems, but to argue for using an approach to clarifying the forensic assessment that has been effective in research on informed consent. This is an argument, then, derived from practical observation, namely that an empirical ethics approach is considered to have delivered relevant results with respect to informed consent (Candilis et al. 2008), rather than an argument derived from a conceptual justification of empirical ethics. Based on this observation, I suggest that empirical ethics may be a candidate for dealing with a fundamentally interdisciplinary issue (law, medicine) like forensic assessment.

In this paper, I do not intend to bring forward that engaging into philosophical reflections on free will is pointless with respect to forensic assessments. Yet, the complexities of certain philosophical issues could result in some sort of stalemate. We should try to avoid that efforts to elucidate the nature of the forensic assessment get stuck in the metaphysics of free will. Forensic researchers should feel free (not) to engage in philosophical debates, as long as that seems to be fruitful (Meynen 2009a).