This course satisfies 3 hours of Ethics for licensure.
In medical settings, particularly inpatient hospitals, physicians are often faced with patients whose cognitive processes are altered-whether by physical processes associated with their medical condition, by cognitive changes associated with age or dementing processes, or by psychological factors or disorders. These changes in thinking and behavior may affect patients' understanding of their medical conditions and decision-making regarding their care. Therefore, physicians may need to make assessments and recommendations about a patient's competency or capacity to make informed decisions about their health care. Psychologists are often consulted to provide these evaluations and give feedback regarding competency issues.
The ability to independently make choices about facets of one's life, such as making decisions about medical care, is a central component to a person's sense of independence and sense of self. When a person loses these decision-making abilities, even temporarily, it can be a tremendous and difficult adjustment for the individual and his or her family. In addition, a legal determination of incompetence can have far-reaching effects on one's life.
In most cases and most jurisdictions, only a judge or other properly authorized person or group, such as a treatment review committee, can legally determine whether a patient possesses or lacks competence to give informed consent. However, judges frequently request that physicians or psychologists render opinions about competence. The current report will discuss important ethical considerations involved in assessing medical decision-making capacity. It also will provide a systematic approach of critical factors to assess when making recommendations about competency issues. These suggestions are based on a review of the neuropsychiatric literature and empirical evidence regarding the most appropriate evaluation for determining capacity for medical decision-making.
In some literature, there is a distinction between "capacity" and "competence," stating that competence is a legal term and capacity is not. However, some jurisdictions do use the word capacity as a legal term (see Moore, 1999 for a more detailed description and list of references regarding this). For the purposes of this review, the terms capacity and competence will be used interchangeably to refer to the clinical notion rather than the official legal determination, except as otherwise noted. Additionally, competence may refer to the ability to perform different tasks, such as care for oneself, live independently, or make medical decisions. In this report, the terms competence and capacity will refer only to ability to make informed medical decisions.
In general, the notion of competence or medical decision-making capacity refers to the ability to give informed consent to accept a medical intervention or make an informed refusal of the intervention (Moore, 1999). As Justice Benjamin Cardozo offered approximately 90 years ago, informed consent reflects the ideal that "every human being of adult years and sound mind has the right to determine what shall be done with his or her own body" (McQuillen, 2001). In examining the issue of competence, the challenge is in defining exactly what constitutes a "sound " mind.
Ethicists have not consistently agreed on a single definition of capacity or competence. Additionally, legal definitions of informed consent and capacity vary from jurisdiction to jurisdiction and depending upon the specific medical case and situation. In clinical and research settings, and often from a legal perspective, a patient's informed consent has been conceptualized as having 3 main components:
For a patient to make a competent decision, he or she must have sufficient information. Ethically and in most cases, legally, it is the physician's responsibility to provide this information. A discussion of the nature and course of the medical disorder, recommended treatments and rationales for treatments, their risks and benefits, alternative treatments and their risks and benefits, and the option of refusing all interventions, should be provided.
- Decisional capacity
Decisional capacity refers to the idea that the patient must be able to communicate his or her wishes and choice. It implies that the patient has sufficient understanding, possesses adequate reasoning processes and an appreciation of the risks and benefits of his or her choices.
Voluntarism indicates that the patient expresses a choice that is not coerced and is of his or her own free will.
Dr. Randall Moore, in his thorough discussion of medical decision-making capacity (1999), recommends the following definition of capacity:
A patient is capable of competent decisions if:
Dr. Moore then presents a systematic approach to assessing competence by evaluating 4 main neuropsychiatric domains relevant to capacity: attention, language, memory and frontal lobe processes. His approach will be discussed in more detail in later sections of this report.
- He or she adequately understands and appreciates the personal significance of:
- The presence of a general medical or mental disorder
- The nature and course of the disorder
- The risks and benefits of the proposed intervention and of the alternatives,
including the alternative of no intervention
- He or she makes a non-coerced choice that does not appear to be unduly influenced by a mental disorder.
LEGAL PERSPECTIVES ON INFORMED CONSENT
Just as there are varying definitions of competence in clinical and ethical research, legal definitions of informed consent and of competence are complicated and highly variable. In general in the United States, the medical malpractice law of every state requires the physician to provide a certain amount of information to allow the patient's informed consent for an important medical intervention. Jurisdictional laws then govern or specify the amount of information the physician must provide. In many cases, the patient's understanding or lack of understanding of the information has no legal significance. In other words, from a legal standpoint, competence or capacity is often simply the ability to express a choice-without the requirement that the patient understand the choice. Clearly, from an ethical and clinical standpoint where the best interests of the patient are valued, it is wise to seek consent based on all 3 factors of informed consent as outlined previously-based on understanding, adequate judgment and lack of coercion.
As noted earlier, clinical assessments of competency do not determine a patient's legal status as competent or incompetent, as this determination must be made by the court. However, clinicians should be aware of the legal criteria that courts apply when making legal judgments about competency. All states have statutory definitions of incompetence. Clinicians should review the relevant statutes for their state and in their assessment explain how findings from their evaluation relate to the legal definition of competence.
Historically, legal incompetence was an all or none condition: one was either competent or incompetent to make all types of decisions about one's life. The modern legal concept of competency has expanded to favor an emphasis on personal autonomy as much as possible. Individuals may be judged incompetent in some life domains but retain the right to make decisions in other domains. Generally speaking, "capacity" is the ability to perform a task. There is no "general capacity", therefore, since capacity is specific to a certain task. In evaluating patients' competencies, the tasks in question should be carefully defined prior to the evaluation. It is extremely important to spell out specifically what abilities the patient has the capacity to perform and which they are not capable of, even within a certain domain such as medical decision-making. An extreme example in this regard is that it is possible for a patient to be able to competently accept an intervention but to lack competence to refuse the intervention. The following case example illustrates this interesting though rare scenario (case taken from Moore, 1999).
A woman was evaluated who was paranoid schizophrenic and had 3 medical conditions: diabetes, hypothyroidism, and hypertension. Her attention, language and memory processes were intact, and frontal-lobe testing showed appropriate reasoning and judgment abilities in general. She understood that she had these medical conditions, the nature and course of them, and the risks and benefits of treatment or of not treating the conditions. However, she had no insight into her mental illness. She possessed delusions including the belief that she had computer chip implants in both of her ears and that invisible people were pushing buttons on the implants to cause her organs to malfunction. Due to these beliefs, she thought the best treatment would be for her doctors to remove the computer-chip implants, so she had quit taking the medications awaiting this request. She did agree to take the medications until the implants were removed and stated she would take the medications after removal of the implants if any of her medical conditions persisted after that time.
Dr. Moore presents the following analysis regarding competency: if the patient decided to take the medications, then her choice would be considered competent because her judgment would not have been unduly influenced by her mental disorder. However, if she refused the medications and insisted on surgery to remove the implants, then her choice would be considered incompetent because her judgment would have been unduly influenced by her mental disorder (Moore, 1999: pg 6-7). Therefore, in this case the patient could be considered competent to accept treatment but not competent to refuse it, due to the undue influence of her mental disorder. This case also illustrates how a patient may have adequate information and understanding of her medical condition, but still be unable to make a competent medical decision due to an influence from a psychiatric disorder.