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Competency to consent to medical care: Toward a general view
Commentary and Perspective From time to time, the Journal receives manuscripts which can be thought of as opinion pieces, essays, or editorial comment on matters of topical interest. Such submissions will be refereed in the usual fashion and if suitable, published in this section. The Editorial Board invites Letters to the Editor or rebutting commentary with the understanding that all submissions are subject to editing.
Competency to Consent to Medical Care: Toward a General View Richard Sherlock Ph.D. Assistant Professor, Sciences, Memphis,
Program on Human Values and Ethics, University of Tennessee, Center for the Health Tennessee
Abstract: Psychiatrists working in consultation-liason services are often called upon to assess the competency of patients who are under the primary care of other physicians. Despite the frequency with which this sort of problem is encountered, no clinically useful guidelines seem to exist to aid the clinician in making such an assessment. In fact, a number of very different sorts of “tests” for competency to consent to medical care seem to exist and are used in practice. This essay attempts to make some headway in defining a general set of clinically useful criteria for the determination of competency to consent to medical care. This is done by looking at the central elements of informed consent itself and then asking what capabilities are required by anyone seeking to give consent to medical care.
One of the problems frequently encountered by the psychiatrist practicing in hospital, group, or liason settings is that of assessing the competency of patients to consent to medical or surgical care [l-6]. The fact that the final determination of “competency” is ultimately made by a court does not lessen the import of the professional decision, because in most cases, courts are strongly predisposed to accept the judgments of certified professionals in these matters. Neither does the fact that the problem of competency is frequently encountered mean Genera/ Hospital Psychiatry 6, 71-76, 1984 0 Elsevier Scmce Publishing Co., Inc. 1984 52 Vanderbilt Avenue, New York, NY 10017
that there is a uniform understanding of the problem or that a clinically applicable set of tests for competency exists which can be routinely applied. In fact, given the importance of the judgment and the rate with which it is encountered in practice, one is struck by the relative paucity of literature discussing it. This is especially true of the paucity of literature discussing it. This is especially true of the paucity of literature regarding the assessment of competency in medical and surgical settings. To date, the literature on competency has concentrated on describing a number of different approaches to the assessment of competency [7-91, with few attempts to develop a unified, clinically applicable understanding of competency and the means of its assessment. Often, these various tests are employed in mixed and overlapping ways depending on the proposed medical or surgical procedure for which consent is sought (its risks, benefits, side effects, etc.) and whether the patient’s initial consent or refusal seems reasonable. This is hardly an optimum state of affairs. In an area as crucial to patient welfare and to the interface of psychiatry with other medical specialities, we ought to be able to formulate some general, 71 ISSN 0X3-8343!84/$XUO
R. Sherlock clinically useful approaches to competency. A number of vague, competing tests, used in uncertain and overlapping ways hardly seems designed to foster patient welfare or trust in the professional abilities of those doing the evaluations. Moreover, I believe that with some serious thought devoted to the subject, we can develop the outlines of a unified view that will preserve the important parts of the various competing tests while adding to them other relevant insights where necessary. This is my purpose in this essay. I hope at least to offer a proposal that will stimulate others to think seriously about these issues. Essentially, the problem is to formulate general, useful guidelines for assessing the competency of patients to offer informed consent to medical or surgical treatment. I suggest that this problem can best be approached in a twofold manner. First, we need to understand the nature of informed consent itself. Secondly, working from that framework as a basis we can supplement our understanding of competency by drawing on established clinical and legal approaches to competency in other areas, such as competency to make out a will or competency to stand trial. Any approach to the question of competency to consent to medical care that fails to take into account the central features of informed consent or that cannot be squared with established legal practices in other areas certainly is defective in crucial ways. In a useful review of the concept of informed consent, Meisel and his coworkers have pointed to two central aspects of a valid informed consent to medical care and these criteria are widely endorsed in the literature on consent [lo-121. The first of these components is informational. Here the question is whether the patient adequately understands his medical condition. The second component is volitional, i.e., is the patient free from coercion in deciding whether to accept or reject a given treatment. In essence, informed consent means a voluntary choice by the patient based on his or her possession of adequate information with which to make a choice. Beginning at this point, it seems most reasonable to consider that the problems of competency are focused around these two core components of informed consent. This will provide us with a useful way in which to organize the discussion and to offer general guidelines for practice.
Informational
Aspects
The question of whether a patient adequately comprehends his medical condition and the therapeutic 72
options proposed to him seems at first glance easy to assess. Typically, this is done by first ensuring that he has been told the necessary facts in language he is capable of understanding and then discerning how much of this material he is able to remember or comprehend. This sort of test for competency is often referred to in an informal way as “does he know what he is doing?” The sort of patient that might fail this type of test is likewise easily recognized. Retarded or demented patients and those with psychotic delusions or in withdrawal from drug or alcohol abuse are common sorts of cases in this regard. However, I believe that this formulation of the informational component of competency is too narrow. It tends to focus clinical evaluation in terms of how much of what he has been told the patient can repeat back to the evaluator. This, however, is surely not all that we wish to know concerning a patient’s cognitive capacities in this regard. Broadly, I believe that our fundamental concern should be whether or not the patient understands the true nature of his medical condition (diagnosis, therapy, prognosis with or without therapy). This is a richer formulation, which is, I suggest more helpful in practice than the formulation noted earlier. This can be seen in the following two cases: Mr. A is a 69-year-old man who is refusing to have a pacemaker inserted. He has no history of psychiatric illness, but his family described increasing suspiciousness, paranoia, and irascrible behavior over the past two years. On evaluation, the patient could adequately recall what the cardiologist and the surgeon told him. Further interviews, however, revealed that he believed that the pacemaker would allow others to monitor and control his activities by electronic surviellance and stimulation. Mrs. B. is a 37-year-old woman with a localized ovarian tumor. The surgeons have told her that given the location of the tumor and its size, the chances for complete resection are good and the long term prognosis is excellent. Nevertheless she adamantly refuses surgery, stating that “if you get air on the tumor it will spread throughout my body.” These two cases present issues that seem to be better captured by the broader formulation of “understanding his situation” rather than by the narrower and simpler “knowledge” criterion. In the first case, Mr. A displayed adequate recall of the medical facts, but his paranoid belief prevented him from having a correct understanding of these
Competency to Consent to Medical Care
facts. Similarly, in the second case, the patient’s consistent adherence to a false belief prevented her from gaining a true understanding of her medical condition. In a sense, she believed that the “facts” were exactly the opposite from the real truth. In neither case was the patient capable, at that point, of understanding the truth of their medical situation. [13-141. These sorts of cases are different from those of the sincere religious devotee who refuses medical care unwisely. Typically, these persons understand adequately the medical choices that confront them, but they believe that their obligations to God must take precedence over any suffering that may befall them from refusing proper medical care. We may believe that such patients are unwise or irrational to make such a choice, but they are not for this reason incompetent. By way of analogy, however, we may note that in other situations where competency must be assessed, individuals must possess certain crucial knowledge without which they are incompetent at that time to engage in that act. For example, a person who does not know the general amount of his estate or who does not know of the existence of a rightful heir is not in a position to sign a valid will, no matter what else he may know about himself, his family, or the world in general [15]. These two pieces of information are properly held to be so essential to the making of a will that unless one is in possession of them one cannot properly dispose of one’s estate. In the same way it seems to me that a true understanding of the medical condition that confronts him or her is essential for a patient to be classed as competent to offer informed consent.
Volitional
Capacities
To offer consent one must be able to choose among alternatives, A coerced confession does not prove guilt. A contract or a will signed under “duress” is invalid. Wills may even be invahdated if the person can be shown to have been under the “undue influence” of someone else at the time the will was signed [15]. Similarly a coerced consent cannot be relied upon for medical or surgical intervention. While these observations seem obvious, the broad category of volitional incapacities is one that has received very limited attention, especially as such incapacities relate to the competency of the patient to give informed consent. It seems obvious, however, that an individual can be compelled to perform or avoid certain activities as much from his internal mental state as from external pressure from families or governmental agencies.
Two obvious examples that come readily to mind are command hallucinations and phobias. Since the former is a core symptom of schizophrenia, it is likely to be accompanied by other cognitive or affective symptoms that will render the patient obviously incompetent. Still, we should note that while this symptom is a cognitive disorder, its effect as related to the question of competency is primarily in terms of the volitional incapacities of the patient. Furthermore, we must call attention to the crucial but difficult to evaluate distinction between “commands” that the patient believes he must obey and others that he merely chooses to obey. Though difficult to judge in an individual case, it will be a crucial distinction in those rare cases where the command hallucination itself, without other symptomatology, will determine competency. It is, therefore, important, as a matter of practice, to keep volitional disabilities separate from other sorts of disabilities that might render a patient’s competency to consent suspect. Phobias are a somewhat trickier and far more clinically significant impediment to the volitional abilities of the patient. It may, of course, seem odd to discuss phobias in the context of medical care rather than the more commonly noted phobias such as those regarding air travel, elevators, crowds, or certain animals. There is, however, nothing that precludes phobias regarding specific forms of medical therapy, and much that suggests their importance in clinical medicine. For example, most experienced psychiatrists have seen more than one patient with a persistent compelling dread of electroshock therapy, even while admitting that these fears are groundless and the benefits of the treatment likely to be substantial. In such cases, it seems to me clearly appropriate to speak of a phobia in DSM-III terms, “A persistent irrational fear of and compelling desire to avoid” the dreaded object combined with a “recognition of the individual” that the fear is unreasonabie 1161. Of course, many persons experience fears of one sort or another, often regarding some type of health care, e.g., surgery or dentistry. In assessing the patient’s competency, however, what we want to know is not that fears and fantasies have made choice difficult but whether choice has been rendered impossible and has reached phobic proportions by fears about treatment. This judgment of how a compelling irrational fear affects a person’s ability to choose is one that must be made by the clinician in the specific case. Thus, we can only call attention to the fact that when a patient has such fears regarding his proposed treatment, his capaci73
R. Sherlock ty to consent must be questioned. When he cannot choose among alternatives as a result of these fears, his volitional capacities seem to be as impaired as those of the patient whose choice is coerced by his family and friends. At this point it is also important to note two other conditions sometimes seen in depressed patients: that are best described as volitional disabilities. The first is indecisiveness, a feature of severe depression that has been noted in the past by descriptive psychiatrists such as Kraepelin and Lewis 117-191. This sort of patient often either cannot make up his mind regarding therapy, or changes his mind so frequently while in treatment, that no therapeutic course can be completed. He may agree to start a course of treatment, but cannot maintain that decision over time. In these patients such a change in the initial decision is not the result of side effects of therapy or of new information they did not initially possess. Rather, the changes are the result of the various aspects of the depressive illness itself, such as mood swings. As such, this is clearly a volitional incapacity that impairs the ability to consent to treatment and to maintain that consent in a required manner. A second feature of some depressive illnesses may be viewed as a more severe form of indecisiveness. In these cases the patient has lost all concern for what happens to him. When asked where he is, such a patient may say “I don’t know.” But the truth is that when pressed hard he does display the required knowledge; the real meaning of his statement is that he doesn’t care where he is or what is happening to him. It is therefore, very difficult to say that the patient is capable of willing anything and; thus, his ability to consent to treatment is severely impaired. Again, some cases will illustrate the importance of these considerations. 1. Mr. W. was a 56year-old man with a localized tumor in the mid brain region. Informed of the need for surgery he consistently refused, stating that under no circumstances would he ever permit anyone to “cut on his brain.” This was true even when the surgeon assured him that in his case the prognosis was excellent and the chance of adverse side effects very small. On examination, he displayed a compelling, even morbid fear of neurosurgery. He even at one point seemed to agree that this might be irrational but he remained terrified of any such operation and could not bring himself to consent to it. 2. Mr. H was a 62-year-old man admitted to the psychiatric service with a diagnosis of depres74
sion. On admission, he appeared severely depressed, with most major signs and symptoms present in a marked degree (anhedonia, anorexia, sleep disturbance, feelings of helplessness and hopelessness, dysphoric mood, etc.). A DST was positive and he expressed suicidal thoughts but no firm plans. Due to somatic complaints and observed side effects he could not be given more than 100 mg of any trycyclic, which proved to be ineffective. ECT was then considered but the patient initially refused. Over time he was repeatedly convinced to consent to ECT but he would repeatedly change his mind. Twice a course of treatment was started but had to be stopped after two treatments due to his change of mind. He continuously manifested an irrational fear of ECT and a sustained indecisiveness toward it, as well as toward other aspects of life in the hospital. In both these cases the patient’s ability to choose among various alternatives presented to him, and to sustain such a choice through a course of therapy is surely compromised. These are volitional, not cognitive disabilities. Nevertheless, they remain serious impediments to the patient’s ability to give informed consent to therapies, impediments that must be scrutinized carefully in any adequate assessment of the patient’s competency. These impediments to a patient’s ability to freely choose or reject therapy are often difficult to judge in a precise manner. Surely pressure from other persons or hallucinations will be easily detected in most cases. The other sorts of impediments to choice may be more difficult to detect and evaluate. This will be especially true when we are trying to decide whether a patient is so impaired in these ways that he is incompetent to give informed consent. What we will want to know is whether the patient can choose, not that he has made an unwise choice or that his choice has been influenced by factors that are irrelevant from a strictly clinical or rational point of view. The mere presence of a fear of surgery or a difficulty in coming to a decision will not be enough to make a judgment of incompetency. In a very provisional way, I suggest that the standard that must be met in regard to these volitional impediments is twofold: 1. Can the patient enter into a process of deliberation about the proposed treatment, i.e., can he weigh risks and benefits in what seems to be an open manner? 2. Can the patient sustain that decision over time when no new information is forthcoming that might cause a reevaluation of the decision?
Competency
The first criterion is formulated to put the emphasis upon the volitional capacities of the patient, not the outcome of his deliberation or the cognitive capacities that are also requisite for any reasonable deliberation. While deliberation does require that the patient have a generally correct view concerning that about which he deliberates, it also requires that the patient be capable of a choice among alternatives. For example, for some persons the fear of air travel is so severe that they simply will not consider flying anywhere, under any circumstances. When faced with the need to travel a long distance they simply cannot deliberate about the relative merits of going by air. On the other hand, some individuals do not like to fly and will try to avoid it if they can, but under the right circumstances they will fly if no other means of travel is available to meet their needs. They may refuse to fly for pleasure, but they may be able to choose to fly in order to reach the funeral of a close relative. Those persons who cannot deliberate in a reasonably calm manner about a proposed therapy will fail this test. Those who can enter into a deliberative process, even though they may make a clinically unwise decision will be competent under its terms. For example, the individual who is terrified of electroshock therapy and who states that he will never consent to it under any circumstances, may be incapable of weighing risks and benefits, and thus be incapable of choice. His decision to refuse may be made, or substantially made, before he ever hears any of the favorable risk/benefit information that the physician is prepared to provide to him. On the other hand, the patient who refuses neurosurgery when the surgeon can only offer him a 40% chance of three year survival, even with surgery, may be making a choice that the surgeon would not make or even a choice that most rational people would not make but it is a choice. He has weighed the alternatives and decided that the risks and costs (in pain, suffering, physical debihtation etc.) of surgery outweigh the benefits for him. One important way to distinguish these two sorts of cases is to ask whether the patient has ever chosen the proposed therapy in the past. If he has then that might indicate either that he can choose this treatment if he believes that the situation warrents it or it may mean that his experience of the side effects has convinced him that, for him, the benefits are outweighed by the costs. In both instances, the patient is weighing the alternatives in terms of his previous experience and reaching perhaps an unwise conclusion, but surely not an incompetent one. The second criterion suggested above is more
to Consent
to Medical Care
straightforward; can a patient sustain a decision for therapy? Of course, if new information comes to him he may wish to change his mind. This may be unwise but it is not evidence that features of a depressive illness are rendering his volitional abilities suspect. It may be that he does not fully understand his situation; for example, he may not know that the side effects of the medication will only be temporary. This, however, is a different sort of disability with regard to competency. If a patient repeatedly changes his mind in the absence of any new information coming to him, then we should be suspicious regarding his ability to sustain a consent through time. My suggestions above differ from the alternatives found in use or in the literature in important ways. Firstly, I believe that those views of competency that treat only the patient’s knowledge regarding his medical situation are clearly defective since they omit any consideration of the crucial “consent” portion of the informed consent process itself. Furthermore, some informal tests for competency do not adequately explore what a patient really understands of his medical situation, but remain contented with a superficial analysis of whether a patient can remember what he has been told. My proposal also differs from those tests that focus exclusively on the evidence of choice by the patient. To be adequate the choice must be made by an adequately informed patient. These sorts of test miss the other crucial feature of informed consent and are thus a mirror image of the tests that concern themselves only with the patient’s “knowledge” regarding his situation. Both are one sided and cannot withstand careful analysis. Finally, my suggestions are not as stringent as those tests that focus on whether a patient’s choice is “rational.” I believe that we should preserve the freedom of persons to act in ways that some might consider unwise, provided that such a patient fully understands his situation and can freely choose among alternatives presented to him. It is true that a patient making a very unwise choice, for example, to refuse removal of a localized malignant tumor, will have his competency called into question. As a practical matter, this is a proper action for the physician to take. It may even be good to view such very unwise choices as prima facie evidence that something is amiss with regard to this patient’s ability to offer informed consent. But as a general theoretical matter, that seems to me as far as we can go. If on examination the patient meets the criteria for competency suggested here, I think we must conclude that he is competent however unwise his 75
R. Sherlock
choice may appear. In practice, I believe that we are very likely to find that most of the cases in which patients make very irrational choices their competency is seriously impaired in one of the ways noted above. In some cases we may conclude, on reflection, that the individual has no right to act in the way he wishes, irrespective of whether he is competent, or alternatively, that anyone who proposes to act in that way must be incompetent. A long line of distinguished philosophers and psychiatrists have come to this conclusion regarding suicide 120-221. Given the strong correlation between completed suicides and diagnosable mental illness, such a policy may be the best available alternative for professional and public practice. There may also be more theoretical reasons for supporting it as well. This, however, will be a special case, the resolution of which may not be generalized to other cases in which patients make unwise choices. Finally, competency is often regarded as a crucial threshold beyond which we must respect the wishes of the patient and below which we are free to do what the physician or the family feels is best. Whether it is wise to regard the question with this much import and whether we violate any patient rights by giving an incompetent patient treatment he has refused for whatever reason, are questions we cannot discuss here. In this regard, we also call attention to the fact that competency to consent to treatment is, like competency to make out a will or competency to stand trial, neither static nor absolute. A patient with a phobia can be treated for that phobic fear, for example. In such cases, one would surely not wish to override a patient’s wishes if one had the time to treat the impediment to competent informed consent first. Where an emergency existed, of course, one might have to give such care as the situation demanded. These questions also cannot be addressed here completely. I fully recognize the difficulties inherent in making any useful headway on this complex question. My hope is that the tentative suggestions I have offered for a comprehensive view of the question of competency to consent to medical care will advance the discussion of these issues in profitable ways and that these discussions will ultimately further patient welfare.
References 1. Applebaum PS, Bateman AL: Competency to con-
sent to voluntary hospitalization: A theoretical ap-
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2. 3. 4.
5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22.
preach. Bull Am Acad Psychiatry Law 7:390-399, 1979 Applebaum F’S, Mirkin SA, Bateman AL: Empirical assessment of competency to consent to psychiatric hospitalization. Am J Psychiatry 138:1170-1176,198l Kaufman CL, Roth LH: Psychiatric evaluation of patient decision making: Informed consent to ECT. Sot Psychiatry 16:11-19, 1981. Meisel A: The exceptions to the informed consent doctrine: Striking a balence between competing values in medical decision making. Wisconsin Law Rev 2:413-488, 1979 Culver C, Gert B: Philosophy in Medicine. New York: Oxford University Press, 1982 Culver C, Ferrel RB, Green RM: ECT and the special problems of informed consent. Am J Psychiatry 137:586-591, 1980 Roth LH, Meisel A, Lidz CW: Tests of competency to consent to treatment. Am J Psychiatry 134:180-185, 1977 Applebaum I’S, Roth LH: Competency to consent to research: A psychiatric overview. Arch Gen Psychiatry 39:951-958, 1982 Stanley B, Stanley M: Testing competency in psychiatric patients. IRB: Rev Hum Subjects Res 4:6 l-6, October 1982 Meisel A, Roth LH, Lidz CW: Toward a model of the legal doctrine of informed consent. Am J Psychiatry 134:285-289, 1977 Freedman B: A moral theory of informed consent. Hastings Center Report 5:32-39, 1975 Beauchamp T, Childress J: Principles of Biomedical Ethics. New York: Oxford University Press, 1979 Faden R, Faden A: False belief and the refusal of medical treatment. J Med Ethics 3:133-136, 1977 Roth LH, Applebaum PS, Sallee R.: The dilemma of denial in the assessment of competency to refuse treatment. Am J Psychiatry 139:910-913, 1982 Weihofen H, Usdin GL: Who is competent to make a will? Ment Hyg 54:37-43, 1970 American Psychiatric Assn: Diagnostic and Statistical Manual, Third Edition Washington, D.C., American Psychiatric Assn. 1980 Kraepelin E: Manic Depressive Illness and Paranoia. Edinburgh, E & S Livingstone, 1921 Lewis A: Melancholia: A clinical survey of depressed states. J Ment Sci 80:277-378, 1934 Cohen RM, et al: Effort and cognition in depression. Arch Gen Psychiatry 39:593-597, 1982 Battin Ml’, Mayo DJ (eds): Suicide: The Philosophical Issues. New York, St. Martin’s Press, 1980 Stengel E: Suicide and Attempted Suicide. New York, Jason Aronson, 1974 Sherlock R: Suicide and public policy: A critique of the new consensus. Bioethics Q, in press.
Direct reprint requests to: R. Sherlock, Ph.D. Program on Human Valves and Ethics University of Tennessee Center for the Health Sciences Memphis, TN 38163
Competency to Consent to Medical Care: Toward a General View Richard Sherlock Ph.D. Assistant Professor, Sciences, Memphis,
Program on Human Values and Ethics, University of Tennessee, Center for the Health Tennessee
Abstract: Psychiatrists working in consultation-liason services are often called upon to assess the competency of patients who are under the primary care of other physicians. Despite the frequency with which this sort of problem is encountered, no clinically useful guidelines seem to exist to aid the clinician in making such an assessment. In fact, a number of very different sorts of “tests” for competency to consent to medical care seem to exist and are used in practice. This essay attempts to make some headway in defining a general set of clinically useful criteria for the determination of competency to consent to medical care. This is done by looking at the central elements of informed consent itself and then asking what capabilities are required by anyone seeking to give consent to medical care.
One of the problems frequently encountered by the psychiatrist practicing in hospital, group, or liason settings is that of assessing the competency of patients to consent to medical or surgical care [l-6]. The fact that the final determination of “competency” is ultimately made by a court does not lessen the import of the professional decision, because in most cases, courts are strongly predisposed to accept the judgments of certified professionals in these matters. Neither does the fact that the problem of competency is frequently encountered mean Genera/ Hospital Psychiatry 6, 71-76, 1984 0 Elsevier Scmce Publishing Co., Inc. 1984 52 Vanderbilt Avenue, New York, NY 10017
that there is a uniform understanding of the problem or that a clinically applicable set of tests for competency exists which can be routinely applied. In fact, given the importance of the judgment and the rate with which it is encountered in practice, one is struck by the relative paucity of literature discussing it. This is especially true of the paucity of literature discussing it. This is especially true of the paucity of literature regarding the assessment of competency in medical and surgical settings. To date, the literature on competency has concentrated on describing a number of different approaches to the assessment of competency [7-91, with few attempts to develop a unified, clinically applicable understanding of competency and the means of its assessment. Often, these various tests are employed in mixed and overlapping ways depending on the proposed medical or surgical procedure for which consent is sought (its risks, benefits, side effects, etc.) and whether the patient’s initial consent or refusal seems reasonable. This is hardly an optimum state of affairs. In an area as crucial to patient welfare and to the interface of psychiatry with other medical specialities, we ought to be able to formulate some general, 71 ISSN 0X3-8343!84/$XUO
R. Sherlock clinically useful approaches to competency. A number of vague, competing tests, used in uncertain and overlapping ways hardly seems designed to foster patient welfare or trust in the professional abilities of those doing the evaluations. Moreover, I believe that with some serious thought devoted to the subject, we can develop the outlines of a unified view that will preserve the important parts of the various competing tests while adding to them other relevant insights where necessary. This is my purpose in this essay. I hope at least to offer a proposal that will stimulate others to think seriously about these issues. Essentially, the problem is to formulate general, useful guidelines for assessing the competency of patients to offer informed consent to medical or surgical treatment. I suggest that this problem can best be approached in a twofold manner. First, we need to understand the nature of informed consent itself. Secondly, working from that framework as a basis we can supplement our understanding of competency by drawing on established clinical and legal approaches to competency in other areas, such as competency to make out a will or competency to stand trial. Any approach to the question of competency to consent to medical care that fails to take into account the central features of informed consent or that cannot be squared with established legal practices in other areas certainly is defective in crucial ways. In a useful review of the concept of informed consent, Meisel and his coworkers have pointed to two central aspects of a valid informed consent to medical care and these criteria are widely endorsed in the literature on consent [lo-121. The first of these components is informational. Here the question is whether the patient adequately understands his medical condition. The second component is volitional, i.e., is the patient free from coercion in deciding whether to accept or reject a given treatment. In essence, informed consent means a voluntary choice by the patient based on his or her possession of adequate information with which to make a choice. Beginning at this point, it seems most reasonable to consider that the problems of competency are focused around these two core components of informed consent. This will provide us with a useful way in which to organize the discussion and to offer general guidelines for practice.
Informational
Aspects
The question of whether a patient adequately comprehends his medical condition and the therapeutic 72
options proposed to him seems at first glance easy to assess. Typically, this is done by first ensuring that he has been told the necessary facts in language he is capable of understanding and then discerning how much of this material he is able to remember or comprehend. This sort of test for competency is often referred to in an informal way as “does he know what he is doing?” The sort of patient that might fail this type of test is likewise easily recognized. Retarded or demented patients and those with psychotic delusions or in withdrawal from drug or alcohol abuse are common sorts of cases in this regard. However, I believe that this formulation of the informational component of competency is too narrow. It tends to focus clinical evaluation in terms of how much of what he has been told the patient can repeat back to the evaluator. This, however, is surely not all that we wish to know concerning a patient’s cognitive capacities in this regard. Broadly, I believe that our fundamental concern should be whether or not the patient understands the true nature of his medical condition (diagnosis, therapy, prognosis with or without therapy). This is a richer formulation, which is, I suggest more helpful in practice than the formulation noted earlier. This can be seen in the following two cases: Mr. A is a 69-year-old man who is refusing to have a pacemaker inserted. He has no history of psychiatric illness, but his family described increasing suspiciousness, paranoia, and irascrible behavior over the past two years. On evaluation, the patient could adequately recall what the cardiologist and the surgeon told him. Further interviews, however, revealed that he believed that the pacemaker would allow others to monitor and control his activities by electronic surviellance and stimulation. Mrs. B. is a 37-year-old woman with a localized ovarian tumor. The surgeons have told her that given the location of the tumor and its size, the chances for complete resection are good and the long term prognosis is excellent. Nevertheless she adamantly refuses surgery, stating that “if you get air on the tumor it will spread throughout my body.” These two cases present issues that seem to be better captured by the broader formulation of “understanding his situation” rather than by the narrower and simpler “knowledge” criterion. In the first case, Mr. A displayed adequate recall of the medical facts, but his paranoid belief prevented him from having a correct understanding of these
Competency to Consent to Medical Care
facts. Similarly, in the second case, the patient’s consistent adherence to a false belief prevented her from gaining a true understanding of her medical condition. In a sense, she believed that the “facts” were exactly the opposite from the real truth. In neither case was the patient capable, at that point, of understanding the truth of their medical situation. [13-141. These sorts of cases are different from those of the sincere religious devotee who refuses medical care unwisely. Typically, these persons understand adequately the medical choices that confront them, but they believe that their obligations to God must take precedence over any suffering that may befall them from refusing proper medical care. We may believe that such patients are unwise or irrational to make such a choice, but they are not for this reason incompetent. By way of analogy, however, we may note that in other situations where competency must be assessed, individuals must possess certain crucial knowledge without which they are incompetent at that time to engage in that act. For example, a person who does not know the general amount of his estate or who does not know of the existence of a rightful heir is not in a position to sign a valid will, no matter what else he may know about himself, his family, or the world in general [15]. These two pieces of information are properly held to be so essential to the making of a will that unless one is in possession of them one cannot properly dispose of one’s estate. In the same way it seems to me that a true understanding of the medical condition that confronts him or her is essential for a patient to be classed as competent to offer informed consent.
Volitional
Capacities
To offer consent one must be able to choose among alternatives, A coerced confession does not prove guilt. A contract or a will signed under “duress” is invalid. Wills may even be invahdated if the person can be shown to have been under the “undue influence” of someone else at the time the will was signed [15]. Similarly a coerced consent cannot be relied upon for medical or surgical intervention. While these observations seem obvious, the broad category of volitional incapacities is one that has received very limited attention, especially as such incapacities relate to the competency of the patient to give informed consent. It seems obvious, however, that an individual can be compelled to perform or avoid certain activities as much from his internal mental state as from external pressure from families or governmental agencies.
Two obvious examples that come readily to mind are command hallucinations and phobias. Since the former is a core symptom of schizophrenia, it is likely to be accompanied by other cognitive or affective symptoms that will render the patient obviously incompetent. Still, we should note that while this symptom is a cognitive disorder, its effect as related to the question of competency is primarily in terms of the volitional incapacities of the patient. Furthermore, we must call attention to the crucial but difficult to evaluate distinction between “commands” that the patient believes he must obey and others that he merely chooses to obey. Though difficult to judge in an individual case, it will be a crucial distinction in those rare cases where the command hallucination itself, without other symptomatology, will determine competency. It is, therefore, important, as a matter of practice, to keep volitional disabilities separate from other sorts of disabilities that might render a patient’s competency to consent suspect. Phobias are a somewhat trickier and far more clinically significant impediment to the volitional abilities of the patient. It may, of course, seem odd to discuss phobias in the context of medical care rather than the more commonly noted phobias such as those regarding air travel, elevators, crowds, or certain animals. There is, however, nothing that precludes phobias regarding specific forms of medical therapy, and much that suggests their importance in clinical medicine. For example, most experienced psychiatrists have seen more than one patient with a persistent compelling dread of electroshock therapy, even while admitting that these fears are groundless and the benefits of the treatment likely to be substantial. In such cases, it seems to me clearly appropriate to speak of a phobia in DSM-III terms, “A persistent irrational fear of and compelling desire to avoid” the dreaded object combined with a “recognition of the individual” that the fear is unreasonabie 1161. Of course, many persons experience fears of one sort or another, often regarding some type of health care, e.g., surgery or dentistry. In assessing the patient’s competency, however, what we want to know is not that fears and fantasies have made choice difficult but whether choice has been rendered impossible and has reached phobic proportions by fears about treatment. This judgment of how a compelling irrational fear affects a person’s ability to choose is one that must be made by the clinician in the specific case. Thus, we can only call attention to the fact that when a patient has such fears regarding his proposed treatment, his capaci73
R. Sherlock ty to consent must be questioned. When he cannot choose among alternatives as a result of these fears, his volitional capacities seem to be as impaired as those of the patient whose choice is coerced by his family and friends. At this point it is also important to note two other conditions sometimes seen in depressed patients: that are best described as volitional disabilities. The first is indecisiveness, a feature of severe depression that has been noted in the past by descriptive psychiatrists such as Kraepelin and Lewis 117-191. This sort of patient often either cannot make up his mind regarding therapy, or changes his mind so frequently while in treatment, that no therapeutic course can be completed. He may agree to start a course of treatment, but cannot maintain that decision over time. In these patients such a change in the initial decision is not the result of side effects of therapy or of new information they did not initially possess. Rather, the changes are the result of the various aspects of the depressive illness itself, such as mood swings. As such, this is clearly a volitional incapacity that impairs the ability to consent to treatment and to maintain that consent in a required manner. A second feature of some depressive illnesses may be viewed as a more severe form of indecisiveness. In these cases the patient has lost all concern for what happens to him. When asked where he is, such a patient may say “I don’t know.” But the truth is that when pressed hard he does display the required knowledge; the real meaning of his statement is that he doesn’t care where he is or what is happening to him. It is therefore, very difficult to say that the patient is capable of willing anything and; thus, his ability to consent to treatment is severely impaired. Again, some cases will illustrate the importance of these considerations. 1. Mr. W. was a 56year-old man with a localized tumor in the mid brain region. Informed of the need for surgery he consistently refused, stating that under no circumstances would he ever permit anyone to “cut on his brain.” This was true even when the surgeon assured him that in his case the prognosis was excellent and the chance of adverse side effects very small. On examination, he displayed a compelling, even morbid fear of neurosurgery. He even at one point seemed to agree that this might be irrational but he remained terrified of any such operation and could not bring himself to consent to it. 2. Mr. H was a 62-year-old man admitted to the psychiatric service with a diagnosis of depres74
sion. On admission, he appeared severely depressed, with most major signs and symptoms present in a marked degree (anhedonia, anorexia, sleep disturbance, feelings of helplessness and hopelessness, dysphoric mood, etc.). A DST was positive and he expressed suicidal thoughts but no firm plans. Due to somatic complaints and observed side effects he could not be given more than 100 mg of any trycyclic, which proved to be ineffective. ECT was then considered but the patient initially refused. Over time he was repeatedly convinced to consent to ECT but he would repeatedly change his mind. Twice a course of treatment was started but had to be stopped after two treatments due to his change of mind. He continuously manifested an irrational fear of ECT and a sustained indecisiveness toward it, as well as toward other aspects of life in the hospital. In both these cases the patient’s ability to choose among various alternatives presented to him, and to sustain such a choice through a course of therapy is surely compromised. These are volitional, not cognitive disabilities. Nevertheless, they remain serious impediments to the patient’s ability to give informed consent to therapies, impediments that must be scrutinized carefully in any adequate assessment of the patient’s competency. These impediments to a patient’s ability to freely choose or reject therapy are often difficult to judge in a precise manner. Surely pressure from other persons or hallucinations will be easily detected in most cases. The other sorts of impediments to choice may be more difficult to detect and evaluate. This will be especially true when we are trying to decide whether a patient is so impaired in these ways that he is incompetent to give informed consent. What we will want to know is whether the patient can choose, not that he has made an unwise choice or that his choice has been influenced by factors that are irrelevant from a strictly clinical or rational point of view. The mere presence of a fear of surgery or a difficulty in coming to a decision will not be enough to make a judgment of incompetency. In a very provisional way, I suggest that the standard that must be met in regard to these volitional impediments is twofold: 1. Can the patient enter into a process of deliberation about the proposed treatment, i.e., can he weigh risks and benefits in what seems to be an open manner? 2. Can the patient sustain that decision over time when no new information is forthcoming that might cause a reevaluation of the decision?
Competency
The first criterion is formulated to put the emphasis upon the volitional capacities of the patient, not the outcome of his deliberation or the cognitive capacities that are also requisite for any reasonable deliberation. While deliberation does require that the patient have a generally correct view concerning that about which he deliberates, it also requires that the patient be capable of a choice among alternatives. For example, for some persons the fear of air travel is so severe that they simply will not consider flying anywhere, under any circumstances. When faced with the need to travel a long distance they simply cannot deliberate about the relative merits of going by air. On the other hand, some individuals do not like to fly and will try to avoid it if they can, but under the right circumstances they will fly if no other means of travel is available to meet their needs. They may refuse to fly for pleasure, but they may be able to choose to fly in order to reach the funeral of a close relative. Those persons who cannot deliberate in a reasonably calm manner about a proposed therapy will fail this test. Those who can enter into a deliberative process, even though they may make a clinically unwise decision will be competent under its terms. For example, the individual who is terrified of electroshock therapy and who states that he will never consent to it under any circumstances, may be incapable of weighing risks and benefits, and thus be incapable of choice. His decision to refuse may be made, or substantially made, before he ever hears any of the favorable risk/benefit information that the physician is prepared to provide to him. On the other hand, the patient who refuses neurosurgery when the surgeon can only offer him a 40% chance of three year survival, even with surgery, may be making a choice that the surgeon would not make or even a choice that most rational people would not make but it is a choice. He has weighed the alternatives and decided that the risks and costs (in pain, suffering, physical debihtation etc.) of surgery outweigh the benefits for him. One important way to distinguish these two sorts of cases is to ask whether the patient has ever chosen the proposed therapy in the past. If he has then that might indicate either that he can choose this treatment if he believes that the situation warrents it or it may mean that his experience of the side effects has convinced him that, for him, the benefits are outweighed by the costs. In both instances, the patient is weighing the alternatives in terms of his previous experience and reaching perhaps an unwise conclusion, but surely not an incompetent one. The second criterion suggested above is more
to Consent
to Medical Care
straightforward; can a patient sustain a decision for therapy? Of course, if new information comes to him he may wish to change his mind. This may be unwise but it is not evidence that features of a depressive illness are rendering his volitional abilities suspect. It may be that he does not fully understand his situation; for example, he may not know that the side effects of the medication will only be temporary. This, however, is a different sort of disability with regard to competency. If a patient repeatedly changes his mind in the absence of any new information coming to him, then we should be suspicious regarding his ability to sustain a consent through time. My suggestions above differ from the alternatives found in use or in the literature in important ways. Firstly, I believe that those views of competency that treat only the patient’s knowledge regarding his medical situation are clearly defective since they omit any consideration of the crucial “consent” portion of the informed consent process itself. Furthermore, some informal tests for competency do not adequately explore what a patient really understands of his medical situation, but remain contented with a superficial analysis of whether a patient can remember what he has been told. My proposal also differs from those tests that focus exclusively on the evidence of choice by the patient. To be adequate the choice must be made by an adequately informed patient. These sorts of test miss the other crucial feature of informed consent and are thus a mirror image of the tests that concern themselves only with the patient’s “knowledge” regarding his situation. Both are one sided and cannot withstand careful analysis. Finally, my suggestions are not as stringent as those tests that focus on whether a patient’s choice is “rational.” I believe that we should preserve the freedom of persons to act in ways that some might consider unwise, provided that such a patient fully understands his situation and can freely choose among alternatives presented to him. It is true that a patient making a very unwise choice, for example, to refuse removal of a localized malignant tumor, will have his competency called into question. As a practical matter, this is a proper action for the physician to take. It may even be good to view such very unwise choices as prima facie evidence that something is amiss with regard to this patient’s ability to offer informed consent. But as a general theoretical matter, that seems to me as far as we can go. If on examination the patient meets the criteria for competency suggested here, I think we must conclude that he is competent however unwise his 75
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choice may appear. In practice, I believe that we are very likely to find that most of the cases in which patients make very irrational choices their competency is seriously impaired in one of the ways noted above. In some cases we may conclude, on reflection, that the individual has no right to act in the way he wishes, irrespective of whether he is competent, or alternatively, that anyone who proposes to act in that way must be incompetent. A long line of distinguished philosophers and psychiatrists have come to this conclusion regarding suicide 120-221. Given the strong correlation between completed suicides and diagnosable mental illness, such a policy may be the best available alternative for professional and public practice. There may also be more theoretical reasons for supporting it as well. This, however, will be a special case, the resolution of which may not be generalized to other cases in which patients make unwise choices. Finally, competency is often regarded as a crucial threshold beyond which we must respect the wishes of the patient and below which we are free to do what the physician or the family feels is best. Whether it is wise to regard the question with this much import and whether we violate any patient rights by giving an incompetent patient treatment he has refused for whatever reason, are questions we cannot discuss here. In this regard, we also call attention to the fact that competency to consent to treatment is, like competency to make out a will or competency to stand trial, neither static nor absolute. A patient with a phobia can be treated for that phobic fear, for example. In such cases, one would surely not wish to override a patient’s wishes if one had the time to treat the impediment to competent informed consent first. Where an emergency existed, of course, one might have to give such care as the situation demanded. These questions also cannot be addressed here completely. I fully recognize the difficulties inherent in making any useful headway on this complex question. My hope is that the tentative suggestions I have offered for a comprehensive view of the question of competency to consent to medical care will advance the discussion of these issues in profitable ways and that these discussions will ultimately further patient welfare.
References 1. Applebaum PS, Bateman AL: Competency to con-
sent to voluntary hospitalization: A theoretical ap-
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2. 3. 4.
5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22.
preach. Bull Am Acad Psychiatry Law 7:390-399, 1979 Applebaum F’S, Mirkin SA, Bateman AL: Empirical assessment of competency to consent to psychiatric hospitalization. Am J Psychiatry 138:1170-1176,198l Kaufman CL, Roth LH: Psychiatric evaluation of patient decision making: Informed consent to ECT. Sot Psychiatry 16:11-19, 1981. Meisel A: The exceptions to the informed consent doctrine: Striking a balence between competing values in medical decision making. Wisconsin Law Rev 2:413-488, 1979 Culver C, Gert B: Philosophy in Medicine. New York: Oxford University Press, 1982 Culver C, Ferrel RB, Green RM: ECT and the special problems of informed consent. Am J Psychiatry 137:586-591, 1980 Roth LH, Meisel A, Lidz CW: Tests of competency to consent to treatment. Am J Psychiatry 134:180-185, 1977 Applebaum I’S, Roth LH: Competency to consent to research: A psychiatric overview. Arch Gen Psychiatry 39:951-958, 1982 Stanley B, Stanley M: Testing competency in psychiatric patients. IRB: Rev Hum Subjects Res 4:6 l-6, October 1982 Meisel A, Roth LH, Lidz CW: Toward a model of the legal doctrine of informed consent. Am J Psychiatry 134:285-289, 1977 Freedman B: A moral theory of informed consent. Hastings Center Report 5:32-39, 1975 Beauchamp T, Childress J: Principles of Biomedical Ethics. New York: Oxford University Press, 1979 Faden R, Faden A: False belief and the refusal of medical treatment. J Med Ethics 3:133-136, 1977 Roth LH, Applebaum PS, Sallee R.: The dilemma of denial in the assessment of competency to refuse treatment. Am J Psychiatry 139:910-913, 1982 Weihofen H, Usdin GL: Who is competent to make a will? Ment Hyg 54:37-43, 1970 American Psychiatric Assn: Diagnostic and Statistical Manual, Third Edition Washington, D.C., American Psychiatric Assn. 1980 Kraepelin E: Manic Depressive Illness and Paranoia. Edinburgh, E & S Livingstone, 1921 Lewis A: Melancholia: A clinical survey of depressed states. J Ment Sci 80:277-378, 1934 Cohen RM, et al: Effort and cognition in depression. Arch Gen Psychiatry 39:593-597, 1982 Battin Ml’, Mayo DJ (eds): Suicide: The Philosophical Issues. New York, St. Martin’s Press, 1980 Stengel E: Suicide and Attempted Suicide. New York, Jason Aronson, 1974 Sherlock R: Suicide and public policy: A critique of the new consensus. Bioethics Q, in press.
Direct reprint requests to: R. Sherlock, Ph.D. Program on Human Valves and Ethics University of Tennessee Center for the Health Sciences Memphis, TN 38163