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Assessment of Patients’
Competence to Consent to
Treatment
Leon Driss MD, MMM
Competency
• The New England Journal of Medicine
– November 1, 2007
– Assessment of Patients’ Competence to Consent to
Treatment
Competency: Definition
• Capacity – The process of health care workers
determining if a patient has the ability to make
sound judgments concerning their health care
• Competency – A legal determination, usually by a
judge – of the patient’s ability to make sound
judgments concerning their medical care
Competency: Patient Consent
• Prior to initiating treatment, physicians are required
ethically and by law to obtain the informed consent of
their patients
• Valid consent is obtained by providing appropriate
information to the patient required to make a voluntary
decision
• The patient must also be competent – must understand
the disclosed information and must understand the
ramifications of pursuing or choosing to refuse treatment
Competency: Alternative Decision Makers
• When patients lack competence – the ability to make
the decision to pursue treatment – alternative
decision makers must be obtained
Competency: Patient Autonomy
• The decision in determining patient competency is
required so that that the patient’s autonomy in
making their own decisions is respected
• It is also required to protect the cognitively impaired
and all those unable to make their own treatment
decisions
Competency: Patient Autonomy
• The determination of capacity is paramount in
balancing the autonomy of patients who have the
ability to make sound decisions and protecting those
who are cognitively impaired
Competency: Legal Status
• A patient’s competency is a legal status that can only
be determined in a court of law
• However, the sheer number of patients whose
competency must be determined is so immense that
the responsibility to make this determination in
almost all cases remains in the physician’s
jurisdiction
Competency: Legal Ramifications
• Obtaining consent from a patient to provide medical
treatment who does not possess the capacity to give
such consent places the physician at risk of a charge
of treating the patient without informed consent
• The ramifications of such an action are formidable
• Thus the physician’s skill at determining a patient’s
capacity to give informed consent is of paramount
importance
Competency: Patient Incapacity
• Patient incapacity to make their own medical
decisions is a common occurrence
• One study of medical inpatients found that 48% were
incompetent to consent to their own treatment
• The clinical team caring for these patients only
identified about a quarter of patients as lacking the
capacity to make their own medical decisions
Competency: Patient Incapacity
• Any disease or treatment that compromises
mentation may be associated with the patient’s
incapacity to make medical decisions
• No specific diagnosis is invariable associated with
incompetence
Competency: Patient Incapacity – Alzheimer’s Disease
• Patients with Alzheimer’s Disease and other
dementias have high rates of incompetence
• More than half of patients with mild to moderate
Alzheimer’s are incompetent to make medical
decisions
• In patients with severe Alzheimer’s, incompetence is
nearly universal
Competency: Patient Incapacity – Psychiatric Diagnosis
• Patients hospitalized with a psychiatric diagnosis are
commonly found to be incompetent: 20 to 25% of
those with depression and up to 50% of those with
schizophrenia or bipolar disease
• A lack of awareness of their diagnosis and their need
for treatment is closely linked with their level of
incompetence
Competency: Patient Incapacity – Cognitive Dysfunction
• When cognitive dysfunction is lacking, a condition
such as unstable angina, HIV, or diabetes mellitus is
not associated with a deficit in capacity in medical
decision-making
• However, in a study of cancer outpatients – a deficit
in capacity to make medical decisions was linked to
older age, fewer years of education and cognitive
impairment
Competency: Patient Incapacity
• Patients with impaired capacity to make medical
decisions are commonly found in ICU’s and nursing
homes
• Health care workers need to be attentive to the
potential limitations in capacity to make health care
decisions in all patient locations and in all patient
types and diagnoses
Competency: Patient Incapacity
• The patient’s diagnosis may be confused with the
determination of capacity
• The diagnosis of Alzheimer’s or schizophrenia does
not automatically indicate a patient’s incapacity in
medical decision-making
Competency: Capacity Assessments
• Historically, physician ability to perform capacity assessments
has been suboptimal
• Physicians are frequently unaware of a patient’s incapacity to
make medical decisions
• When incapacity is suspected, physicians are often unaware
how to confirm this suspicion
• The ability to correctly assess a patient’s capacity to make
medical decisions requires a high index of suspicion of patient
incapacity and the use of a systematic approach in assessing
capacity
Competency: Capacity Assessments
• Legal determinations of competency vary across
jurisdictions
• In general, they base determinations on:
– a patient’s ability to communicate a choice
– a patient’s ability to understand relevant information
– a patient’s ability to appreciate the consequences of their
choice
– a patient’s ability to reason about treatment choices
Communicate a Choice
• Patient’s task: Clearly indicate preferred treatment option
• Physician’s task: Ask the patient to choose treatment option
• Questions:
– Have you decided whether you will follow your doctor’s
recommendation for treatment?
– Can you tell me what the decision is?
– (If no), What is making it hard to decide?
• Comments: Frequent reversals of choice may indicate lack of
capacity (possibly due to psychiatric or neurologic condition)
Understand the Relevant Information
• Patient’s task: Understand the meaning of the
information communicated by the physician
• Physician’s task: Request the patient paraphrase
communicated information regarding their medical
condition and treatment
Understand the Relevant Information, cont.
• Questions:
– Please tell me in your own words:
•
•
•
•
What is your health problem?
What is the recommended treatment?
What are the benefits and risks (or discomforts) of the treatment?
Are their any alternative treatments? If yes, what are the benefits
and risks?
• What are the benefits and risks of choosing to decline pursuing the
recommended treatment?
Understand the Relevant Information, cont.
• Comments:
– Information to be understood includes:
•
•
•
•
Status of the patient’s condition
Nature and purpose of proposed treatment
Benefits and risks of proposed treatment
Alternative options, including no treatment and its risks and
benefits
Understand the Situation and its Consequences
• Patient’s task: Acknowledge their medical condition
and the likely consequences of treatment options
• Physician’s task: Ask the patient to describe their
medical condition, proposed treatment and likely
outcomes
Understand the Situation and its Consequences, Cont.
• Questions:
–
–
–
–
–
–
What is wrong with your health?
Do you believe you require treatment?
What will the treatment do for you?
Why do you believe it will have this effect?
What will happen if you do not receive the treatment?
Why do you think the doctor has recommended this
treatment?
Understand the Situation and its Consequences, Cont.
• Comments:
– Courts have recognized that patients who do not
acknowledge their illnesses, and have a lack of insight into
their conditions, cannot make valid decisions about their
treatment
– Delusions or pathologic levels of distortion are the most
common causes of impairment
Reason About Treatment Options
• Patient’s task: Engage in a rational process of
discussing and evaluating the relevant information
• Physician’s task:
– Ask the patient to compare treatment options and their
consequences
– Ask the patient to explain the reasons for their selection of
a treatment option
Reason About Treatment Options, cont.
• Questions:
– How did you make your decision to accept or reject the
recommended treatment?
– What makes the option you chose better than the
alternative options?
Reason About Treatment Options, cont.
• Comments:
– This task focuses on the process by which a decision is
reached
– Not the outcome of the patient’s choice
– Patients have the right to make poor choices
Competency Evaluation
• The level of impairment that renders a patient
incapacitated in making treatment decisions should be a
balance between the patient’s autonomy and the
consequences of making a bad decision
• Since the great majority of patients are competent in
making their own treatment decisions, physicians should
error towards patient autonomy and declare patients
incapacitated in making treatment decisions only when
their incapacity is most obvious
Competency Evaluation, cont.
• In practice, the aggressiveness in pursuing a patient’s
capacity should be directly related to the seriousness
of the patient’s medical condition and the severity of
the consequence of a poor decision
Competency Evaluation, cont.
• In the absence of a reason to question a patient’s
competence, each patient is assumed competent to
make their own treatment decisions and have their
wishes honored
• When patient competency is in question, physicians
and other health care workers should use a
structured protocol in evaluating patient capacity as
previously discussed
Competency Evaluation, cont.
• When physicians and nurses were studied in making
capacity decisions, those that were asked to use a
systematic set of questions made decisions that
correlated highly with expert judgments
Competency Evaluation, cont.
• Although a simple instrument to screen patients for
impaired capacity would be valuable, no instruments
designed to date have yielded consistent results
Competency Evaluation, cont.
• The MMSE exam has been found to correlate with clinical
judgments of incapacity but its use is restricted mostly to
those patients at the high and low range of capacity –
especially among elderly patients with some degree of
cognitive impairment
• No single cutoff score has been found to signify incapacity
• None the less, scores below 19 are associated with incapacity
and scores above 23 to 26 more strongly indicate competence
Competency Evaluation, cont.
• In an effort to standardize and increase the reliability of
competence evaluations, an instrument was developed
named the “MacArthur Competence Assessment Tool for
Treatment”
• It incorporates data specific to a patient’s situation
• Quantitative scores are generated for the four domains
previously discussed in evaluating a patient’s capacity to
make their own treatment decisions
Competency Evaluation, cont.
• An experienced clinician can administer the
MacArthur test in 20 minutes
• Even this test result must be integrated with other
patient data in order to reach a valid judgment of the
patient’s competence
• This instrument is most valuable when an
assessment is very difficult or when a case is most
likely to be resolved in court
Competency Evaluation, cont.
• To ensure a valid assessment, each patient must be made
aware of all relevant information, including:
– Status of the patient’s condition
– Nature and purpose of the proposed treatment
– Alternative treatments, including no treatment
• An assumption cannot be made that such a disclosure has
been made
• The evaluator must witness one of the patient’s clinicians
sharing this information with the patient or disclose the
relevant information himself
Competency Evaluation, cont.
• Given the possibility of a fluctuation in the patient’s
mental capacity and the seriousness in depriving a
patient of decision-making rights, the evaluation
should be deferred until the patient’s mental status
has improved or repeat the evaluation a second time
or at a later date when possible
Competency Evaluation, cont.
• When possible, family members, nursing staff or
other people familiar to the patient should be
included in assessing the patient’s competence
• Although the patient should be informed of the
purpose of the evaluation, they need not give
consent for the assessment to occur
Competency Evaluation, cont.
• The patient is deemed incompetent:
– Unless the need to pursue treatment is urgent, the cause of the
patient’s impairment should be investigated prior to initiating a
substituted decision to proceed with treatment contrary to the
patient’s wishes
– If factors such as fever, hypoxia, sedation or uremia are allowed
to resolve, the patient may regain the capacity to make their
own decisions
– Patients with psychiatric disorders may regain their capacity to
make their own decisions with appropriate treatment or with a
patient edification of the pertinent clinical data
Competency Evaluation, cont.
• The patient is deemed incompetent:
– When fear or anxiety interferes with the patient’s capacity
to make treatment decisions; involving their family, friends
or other trusted confidents may allow the patient’s
capacity to make treatment decisions to be restored
Competency Evaluation, cont.
• If the patient is deemed incompetent:
– Seek out a substituted decision maker
– In an emergency, a physician may provide treatment that they
believe a reasonable person would choose
– For patients with an advance directive, follow its directive if it
applies
– For patients with a medical power of attorney, they should be
contacted to provide a decision of treatment that they believe
the competent patient would have chosen
Competency Evaluation, cont.
• If the patient is deemed incompetent:
– In the absence of an advance directive or power of attorney,
family members should be contacted if time is available
– State statutes often identify the priority of family members to
contact as:
•
•
•
•
•
Spouse
Adult children
Parents
Siblings
Other relatives
Competency Evaluation, cont.
• If the patient is deemed incompetent:
– In the event of family members of the same priority having
a disagreement in choosing a treatment
• Assemble the involved family members and as many involved
clinical staff members as possible for clarification and discussion
• Intractable disagreements may require resolution in a court of law