Download Competency to Consent to Research and Treatment

COMPETENCY TO
CONSENT TO RESEARCH
AND TREATMENT
JOE GULLETT
DECISIONAL V. PROCEDURAL
CAPACITY
• Decisional capacity – The capacity to make
important legal decisions
• Procedural capacity – When a person can
understand the nature and consequences of
proceedings
JACKSON V. INDIANA
• The courts have authority to commit incompetent
defendants for mental health treatment
involuntarily
• It is not constitutional to hold someone strictly for
treatment to restore competency longer than the
person would have been held if convicted of the
crime.
• Criminal defendants can be held longer if they are
considered dangerous to themselves or others as a
result of mental illness.
18 U.S.C., § 4246
• Allows continued commitment of an incompetent defendant
who is judicially determined to:
"presently suffer from a mental disease or defect as a result of
which his release would create a substantial risk of bodily injury
to another person or serious damage to property of another”
• Only applies until a "suitable” (i.e., safe) state placement is
found, or the defendant is no longer dangerous because of
mental illness.
• Involuntary commitment for treatment to restore competency
to proceed does not necessarily mean treatment with
psychiatric medications.
RIGGINS V. NEVADA (1992)
• The U.S. Supreme Court provided vague guidance
regarding medicating incompetent defendants.
• The justices indicated:
"treatment with antipsychotic medication was
medically appropriate and, considering less intrusive
alternatives, essential for the sake of [the defendant's]
own safety or the safety of others“
• They did not spell out whether involuntary treatment
simply to restore competency was appropriate
OTHER FACTORS RELATED TO
COMPETENCY
• The ability to consult with his or her lawyer implies
capacity to do so rather than desire to do so.
• It is not unusual for criminal defendants not to want
to cooperate with counsel for reasons not rooted in
mental illness.
• The ability to identify the motivation for this lack of
cooperation is the task of the forensic evaluator.
• If the forensic neuropsychologist believes the
defendant is not competent, it is his or her
responsibility to provide prognostic considerations
and outline remedial options from a clinical
perspective.
OTHER FACTORS INFLUENCING
COMPETENCY
• Even if a patient is found to have the necessary
cognitive functioning skills to be declared
competent, their emotional states may be a barrier
to adequate functioning
Example: The patient can clearly state the pros and cons of a
necessary life-saving medical treatment but simply “doesn’t
care” whether he or she lives or dies
BUT YOU REALLY NEED IT -- TRUST ME
I’M A PHILOSOPHICAL DOCTOR!
• Despite the fact that a patient might refuse
treatment that you know would benefit them, if
they are found with a formal assessment to have…
• Intact reasoning and decision-making skills
• Absence of significant psychiatric or emotional barriers
• Relatively sound neuropsychological functions
• … their desire to not pursue treatment must be
respected.
TREATMENT CONSIDERATIONS
Grisso (1988) pointed out these issues to consider:
Whether the defendant's deficits are remediable;
If so, the treatment that is required for remediation;
How long the remediation is likely to require;
The local facilities or programs in which the
treatment is available; and
• The conditions of restriction represented by each of
these facilities.
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TREATMENT CONSIDERATIONS
• Courts may have the option to place defendants in
community treatment or rehabilitation programs.
• Federal law dictates that U.S. district judges are to
commit incompetent defendants to the custody of
the U.S. attorney general for inpatient mental health
treatment focused on competency restoration (Title
18, U.S.C., Section 424ld).
• A definite aspect of this commitment is an
additional assessment of competency to proceed.
TREATMENT GOALS
• The goal of treatment is remediation of deficits
sufficient to restore competency.
• This level of therapeutic outcome is likely lower than
that espoused in general clinical rehabilitation.
• The ultimate goal is the ability to advance
successfully through legal proceedings rather than
successful independent living and community
reentry.
RESEARCH CONSENT AND
COMPETENCY
• A diagnosis of dementia or other neurological or
psychiatric disorder is not synonymous with
incompetence.
• A patient who meets the NINCDS-ADRDA criteria for
probable AD may be competent to
• consent to medical treatment or research
• perform other activities such as driving or managing
financial affairs.
RESEARCH CONSENT AND
COMPETENCY
• In making determinations of competency, the
examiner must perform a functional analysis
• The examiner must consider whether the individual
possesses the skills and abilities integral to performing a
specific act in its context.
• Although, diagnosis is a relevant factor in
evaluating competency, it:
• conveys no specific functional information
• cannot by itself be dispositive of the competency question
RESEARCH CONSENT CAPACITY IN MCI
• A 2008 study examined cognitive correlates of
decisional capacity in a sample of individuals with
MCI (n=40) and 40 cognitively intact older adults.
• The authors assessed capacity to give informed
consent for a hypothetical clinical trial, as well as
examined neurocognitive functioning across a
variety of cognitive domains.
• Results from this study indicate that individuals with
MCI perform more poorly than controls on measures
of decisional capacity, particularly understanding
and reasoning.
Jefferson, 2008
RESEARCH CONSENT CAPACITY IN MCI
• The data also indicate that executive dysfunction is
associated with impaired decisional capacity in
MCI.
• This finding contrasted with the Larrabee group's
prior observation that verbal memory is preeminent
as the predictor in MCI.
• Overall, this study showed that decisional capacity
declines in MCI occur in both research and clinical
settings
• suggests that consent capacity be carefully evaluated in
potential research participants with MCI