Degrees of Competence: Do Liberals and Conservatives Understand Mental Illness Differently?

Last Thursday, the Supreme Court ruled that a mentally ill person may be competent to stand trial and yet not competent enough to represent him- or herself without the assistance of an attorney.

The decision rests on trial judges’ ability to distinguish fine differences in levels of competence. In the past (Godinez v. Moran, 1993), the Court had rejected the notion that to agree to a plea bargain requires more competence than to participate in a trial, where a lawyer can guide the proceedings. But here, in a majority opinion written by Justice Stephen G. Breyer, the Court ruled that collaborating with one’s lawyer is less demanding than acting on one’s own and that trial judges can determine when a defendant has one competence and not the other.

In dissent, Justice Antonin Scalia seems to attempt personally to gauge the competence of the criminal defendant, Ahmed Edwards, noting that although some of his written communications were unintelligible, others were coherent, as was his verbal presentation in court.

Both Justice Breyer and Justice Scalia consider issues of “autonomy” and “dignity” to be in play; both agree that self-representation is more likely to lead to an unfavorable outcome for a defendant than representation by an attorney.

The earlier (Godinez) case echoes a debate within health care. Some ethicists argue that consenting to care that doctors deem necessary requires a lower level of competence than refusing that care and risking a danger that is evident to qualified experts. Other ethicists argue that such a distinction puts too much power in the hands of authorities and institutions — favoring the choices doctors recommend.

When a demented patient signals, yes, he agrees to an intervention that may restore his thinking, we may believe that he should get that treatment even if we know he has limited reasoning power and is merely placing himself in his doctors’ hands. We might be more concerned over the same patient’s half-coherent refusal of the same intervention, on the grounds that assessing an alternative course of action, one that professionals consider riskier, requires additional capacity. All the same, it is easy to see what makes theorists uncomfortable about the argument that the same man is competent in one instance and not the other.

Justice Breyer argues that we can hold on to Godinez and still recognize differing levels of competence in the current case, Indiana v. Edwards. But the result does seem to imply a shift in viewpoint. The split decision suggests that the Court’s liberal and moderate members now believe that thoughtful experts (here, judges) can make difficult distinctions in the service of a humane outcome; the conservatives put more weight on a libertarian ideal of individual rights even in the face of impairment and likely self-harm.

Is there a further implication that the liberals more fully embrace the concept of mental illness, as substantially injuring judgment and diminishing self, while conservatives have their doubts? I hear hints of this latter viewpoint in Justice Scalia’s emphasis on coherence of expression. Many psychotic patients speak intelligibly, even when their argument is guided by a fixed delusion. Whether a given person is competent to make decisions that are likely to go against his or her own interests would seem a matter calling for a more complex standard, one that takes into account the differing mental functions that psychosis can impair.