Competency

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."

1. 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.
2. 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.
3. 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.