The determination of competency is a critical one in a liberal democracy as it tries to balance the values of self-determination and the protection of innocents from harm. This determination becomes particularly important in elderly persons for whom chronic illness and mental disability both necessitate and frustrate decisions about medical treatment, about institutional placement, and, sometimes, about the quality of life itself. While there is no "Holy Grail" by which to judge competency (Roth et al.), careful consideration of this important social construct is necessary to maximize patient independence and well-being.
Although American society highly values freedom and autonomy, there are competing values. In the provision of health care, patient autonomy has been a relatively new arrival, coming of age in the rights movements of the 1960s and 1970s. More tried and true for health professionals are the principles of beneficence (to help) and nonmaleficence (to do no harm). Usually these old and new values do not come into conflict. Patients seek the care of physicians in order to relieve or prevent suffering. They voluntarily go to physicians because the latter are professionals with special technical knowledge and practical wisdom about the relief of suffering. In most instances patients exercise their autonomy by asking physicians for advice and then following it. (Youngner).
Sometimes, however, patients and their physicians do not agree about what is best for the patient. Physicians often deal with such conflicts by overriding patients' wishes directly, by force, or indirectly, by manipulation or deceit. This is paternalism; the physician acts unilaterally in what he or she perceives as the patient's best interest. Today paternalism has been, for the most part, rejected. The notion of competence, however, offers a way out of the impasse: in order to exercise freedom of choice and accept responsibility for that choice, a person must have the mental ability to do so. Although freedom of choice is valued, society wants to prevent harm to persons who are inherently unable to make choices.
Competency is one of five elements of the legal and moral doctrine of informed consent that governs the complicated exchange of information about treatment options and the decisions that result from it (Meisel et al.). The other elements are voluntariness, provision of adequate information, understanding, and the making and expression of an actual decision. Competency refers to mental and decision-making capacities inherent in the patient.
Competency is decision- and situation-specific. One person may be competent to make medical decisions but incompetent to handle finances; another may be competent to consent to a chest X-ray but incompetent to agree to complicated surgery. Competency can fluctuate over time. For example, a patient may become very confused when experiencing a high fever, but be quite clear when his or her temperature returns to normal (Appelbaum et al.). Some patients may be found globally incompetent—they lack the capacity to make any important decisions in their lives. In such cases a guardian of person must be appointed.
Competency and capacity
Although the terms "competency" and "capacity" are often used interchangeably, they differ in a critical manner. "Competency" is a legal term. People are presumed competent until proven otherwise. Competency is also a threshold concept—one is either competent or not competent. (Buchanan et al.). If a person is competent, he or she has the right and the responsibility to make decisions in life, including medical decisions. If a person is incompetent, he or she loses those rights and responsibilities. Someone else must make the decisions for that person.
"Decision-making capacity," on the other hand, is a clinical term that is used to describe varying degrees of mental ability, ranging, for example, from none to slight, moderate, or excellent. Unlike competency, decision-making capacity describes a spectrum of ability (Youngner). Clinicians know that people's inherent ability to make decisions, unlike their legal right to do so, is not an all-or-nothing phenomenon. At one end of the spectrum is the comatose patient, totally unable to make decisions; at the other end is the totally calm, intelligent, rational, decisive, and self-aware person. In reality most patients fall someplace in between. Inherent qualities such as character (e.g., difficulty making decisions), neurosis (e.g., fears and anxieties), and illness-imposed qualities (e.g., pain, fear, isolation, diminished self-image, or dementia) attenuate decision-making capacity to some degree. The critical question, then, is when, on this spectrum of ability, society is willing to take away a person's right and responsibility to make his or hers own decisions.
Drawing the line between competency and incompetence
Except at the extremes (the comatose patient or the ideally rational one), wherever one draws the line on the decision-making capacity spectrum, persons with some degree of capacity will be denied the legal right to make decisions while others with some degree of impairment will be allowed that right. For example, a patient with severe dementia may be judged incompetent but still have credible opinions about the quality of his or her care. Similarly, a patient may be judged competent despite some forgetfulness and confusion.
In order to be judged incompetent, patients must have evidence of mental illness that demonstrably affects their judgment about the matter at hand. Neither mental illness nor disturbed judgment alone is sufficient to prove incompetence. Patients with depression, dementia, or even schizophrenia may have adequate decision-making capacity to take responsibility for medical, financial, or other personal decisions. However, poor judgment alone is not adequate for a legal determination of incompetence. Neurosis, character flaws, and situational upset generally do not qualify as reasons to excuse persons from, or deprive them of, responsibility for their choices.
To demonstrate incompetence, then, one must show that mental illness has disrupted a person's judgment about a particular decision or set of decisions to the point where he or she cannot have, and no longer should have, that decision-making responsibility. What type of criteria and tests can be applied to make this determination?
Alan Buchanan and Daniel Brock have suggested three fundamental attributes necessary for adequate decision making: (1) understanding and communication, (2) reasoning and deliberation, and (3) a stable set of values (Buchanan). "Understanding" includes the abilities "to receive, process and make available for use the information relevant to particular decisions." "Relevant" means the information that is necessary for making a specific decision—that is, recommended treatment, alternative treatments (including no treatment at all), and the benefits and burdens of each alternative. Patients must also be able to communicate their questions, concerns, and decisions. Paul Appelbaum and Thomas Grisso argue that communications must be stable "long enough for them to be implemented."
The ability to reason and deliberate requires the patient to understand the consequences of making certain choices in terms of how they further one's good or promote one's values. It also includes some ability to use probabilistic reasoning and to understand the implications of current decisions for future outcomes (Appelbaum and Grisso). While rational thinking is an important consideration, few decisions in life are entirely rational. Appelbaum and Grisso note that "Rational manipulation involves the ability to reach conclusions that are logically consistent with the starting premises. . . . Assessing the relevant capacities requires examining the patient's chain of reasoning."
Finally, patients must have a stable set of values and a notion of well-being that is minimally consistent and stable. That is, they must have a sense of the good that is authentic to them and against which they can judge the outcomes of their decisions.
There is no unique or consistent correspondence between various organic or psychological states and specific loss of these fundamental attributes. For example, dementia might disrupt the ability to retain relevant information, but delirium or severe anxiety also could produce such a deficit. One must remember that each of the attributes necessary for decision making—the ability to understand and communicate, the ability to reason, and a stable set of values—is most often partially, rather than completely, compromised. This leaves the evaluator in the position of making a weighty decision as to whether the compromise is sufficient to declare the patient incompetent.
There are, however, some objective guidelines for making this judgment. First, a caveat is in order. Because competency is such a multidimensional concept and because the tests for measuring it vary according to the circumstances of the case, there is no single, correct test. No specific psychometric or clinical tests exist to operationalize the determination of competency. Tests such as the Mini-Mental State Exam, which attempt to quantify cognitive ability, and more general tests, such as the comprehensive mental status examination, do not in themselves provide the answer. A low score on a quantitative test or deficits detected on clinical examination (e.g., loose associations, memory deficits, and pressured speech) will certainly raise suspicions about competency. The key question remains, however, Do these deficits impair the patient's capacity enough that the authority to make decisions should be assigned to someone else? Various tests for evaluating competency have been suggested in the literature.
Buchanan and Brock identify three tests of competence that are "more or less stringent" and "strike different balances between the values of patient well-being and self-determination."
- The first test is that the patient is merely able to express a preference. This is a minimal standard and leaves unexamined the patient's capacities for understanding, reasoning, and whether or not the decision conforms with the patient's own values.
- A somewhat more stringent test relies on the outcome of patients' decisions—that is, patients are competent if their decisions seem reasonable to others. Although such a standard can often be expected to protect patient well-being, it does so in a manner that may not, in fact, reflect the values of the patient. It also makes inferences about patients' ability to understand and deliberate about their choices, inferences that may be mistaken. Therefore, this standard may fail to respect patient self-determination and, consequently, well-being.
- The most stringent standard examines the process of reasoning that precedes and results in the specific decision in question. Of the three tests, the process test alone makes an attempt to evaluate decision-making attributes directly. Here, one examines the actual ability to understand, reason, and hold a stable set of values.
Should the standard for determining competence be the same in all cases, or should it vary with each decision and clinical context? With few exceptions (Culver and Gert) most people reject the notion of one standard, endorsing instead a sliding scale that demands a more stringent standard when patients' choices seem to threaten their well-being. (Roth et al.). This decision-relative approach is the one most often used in the clinical setting, and reflects health professionals' and society's effort to reach an acceptable compromise when patients' decisions seem to threaten their well-being. When patients agree to recommendations for treatment that have an excellent chance of restoring health and without which they are likely to die, their competence is rarely called into question. For example, if a mildly demented male patient were to agree to lifesaving but relatively risk-free surgery for acute appendicitis, it is unlikely that his physicians would call in a psychiatrist to examine the reasoning behind his decision more deeply. On the other hand, if the same patient refused the surgery, the test for competency would likely become more stringent.
Similarly, when patients refuse treatments that are unlikely to benefit them and carry great risks (e.g., a highly invasive experimental therapy), their competence will rarely be challenged. Under these circumstances it is the decision to accept the risky treatment that will be subjected to greater scrutiny.
Who should evaluate competency?
Although competency is at root a legal determination, physicians routinely make competency judgments in the acute care setting. While these determinations could theoretically be challenged in court retrospectively, they rarely are. For non-urgent competency evaluations, such as competency of a person for nursing home placement, a court hearing must be held and a formal guardian appointed. Physicians' opinions are rarely challenged in these more formal legal settings. What type of physician should make competency evaluations? The answer is relative to the situation. Psychiatrists and clinical psychologists are the most trained to recognize and treat mental illness. Many of these specialists are experienced in competency evaluations. However, if a patient is comatose, severely demented, or wildly psychotic, and the situation is urgent, an expert opinion may be superfluous; the competency determination may be readily handled by the primary physician.
Stuart Younger, M.D.
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