Patients who lack competence cannot make health care decisions. However, if a patient deemed by a physician to lack clinical competence expresses a preference, the physician is not entitled to override that preference unless the patient is also found by a court to lack legal competence to make that decision.

Evaluation of the capacity of a patient to make medical decisions should occur in the context of specific medical decisions when incapacity is considered.1 (Example?)

Patients who have clinical and legal competence have the right to make health care decisions, including refusal of medically necessary care, even if death may result from refusal.

Clinical competence: Clinical competence to make health care decisions is the ability to understand the benefits and risks of the proposed health care, to understand possible alternatives, and to make and communicate a health care decision. Health care practitioners determine this type of competence clinically and document the determination process. The courts become involved only when the determination itself or another aspect of the process is challenged.

Clinical competence is specific to a particular health care decision and thus is limited to that decision. The level of clinical competence needed to make a health care decision depends on the complexity of that decision. Patients with some decrease in competence, even those with fairly severe cognitive deficits, may still have enough competence to make simple health care decisions, such as whether to allow a rectal examination or placement of an IV. The same patient may lack the competence to decide whether to participate in a clinical trial. All feasible attempts should be made to involve the patient in decision making. Ignoring the decision of patients with competence or accepting the decision of patients without competence is unethical and risks civil liability. A patient's ability to carry out a decision is also important for physicians to assess. For example, a patient with a broken leg may be able to make decisions but be unable to carry them out. Providing the necessary support to carry out a decision becomes an important goal of care.

Capacity may be intermittent, variable, and affected by the environment. Patients who lack competence due to intoxication, delirium, coma, severe depression, agitation, or other impairment may regain competence when their impairment resolves. To obtain consent to treat a patient who lacks clinical competence, health care practitioners must contact an agent or proxy designated in the patient's durable power of attorney for health care or another legally authorized surrogate (see below). If urgent or emergency care is needed (eg, for an unconscious patient after an acute event) and there is no designated surrogate or the surrogate is unavailable, the doctrine of presumed consent applies: Patients are presumed to consent to any necessary treatment.

Legal competence: Legal competence is a legal status; it cannot be determined by health care practitioners. In the US, people aged ³ 18 yr are automatically considered legally capable of making health care decisions for themselves. Emancipated minors are people below the age of majority (usually 18) who are also considered legally capable. The definition of this group varies by state but generally includes minors who are married, who are in the armed forces, or who have obtained a court decree of emancipation.

People remain legally capable until a judge with appropriate jurisdiction declares them legally incapacitated with respect to some or all areas of functioning. The legal requirements for declaring legal incapacity vary by state. However, substantiation of all of the following is typically required:

· A disabling condition (eg, intellectual disability [mental retardation], a mental disorder, dementia, altered consciousness, chronic use of drugs)

· Inability to receive and evaluate information or to make or communicate decisions

· Inability to meet essential requirements of physical health, safety, or self-care without protective intervention

If physicians question a person's legal competence, they may seek a court's determination. Physicians may be asked to testify at or provide documentation for a hearing to determine legal competence.

When the court declares a person legally incapacitated, it appoints a guardian or conservator to make legally binding decisions for the person in a specific range of matters. Courts can also make decisions about disputed issues (eg, the meaning of a particular instruction in the patient's living will about which parties disagree).

 

  • When the patient is incompetent, a guardian (surrogate decision maker or health care power of attorney) should be appointed by the court.

  • Depression always should be evaluated as a reason for the patient's “incompetence.” Patients who are suicidal might refuse all treatment; this decision should not be respected until the depression is treated.

  • Patients can be hospitalized against their will in psychiatry (if they are a danger to themselves or others or gravely disabled) for a limited time. After 1 to 3 days, patients usually get a hearing to determine whether they have to remain in custody. This practice is based on the principle of beneficence (a principle of doing good for the patient and avoiding harm).

  • Restraints can be used on an incompetent or violent patient (delirious, psychotic) if needed, but their use should be brief and reevaluated often. Restraints have caused injuries and even death in some cases and can do more harm than good.

  • Patients younger than 18 years do not require parental consent in the following situations:

    • If they are emancipated (married, living on their own and financially independent, parents of children, serving in the armed forces)

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      If they have a sexually transmitted disease, want contraception, or are pregnant

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      If they want drug treatment or counseling

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    Some states have exceptions to these rules, but for the boards, let such minors make their own decisions.

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    If a patient is comatose and no surrogate decision maker has been appointed, the wishes of the family generally should be respected. If there is a family disagreement or ulterior motives are evident, talk to your hospital ethics committee. Use courts as a last resort.

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    In a pediatric emergency when parents and other family members are not available, treat the patient as you see fit. In incompetent or comatose adults, the same principle is followed if no responsible parties, caregivers, or relatives can be located.

    Data Synthesis Incapacity was uncommon in healthy elderly control participants (2.8%; 95% confidence interval 1.7%-3.9%) compared with medicine inpatients (26%; 95% CI, 18%-35%).

    [Clinicians accurately diagnosed incapacity (positive likelihood ratio [LR+] of 7.9; 95% CI, 2.7-13), although they recognized it in only 42% (95% CI, 30%-53%) of affected patients. Although not designed to assess incapacity, Mini-Mental State Examination (MMSE) scores less than 20 increased the likelihood of incapacity (LR, 6.3; 95% CI, 3.7-11), scores of 20 to 24 had no effect (LR, 0.87; 95% CI, 0.53-1.2), and scores greater than 24 significantly lowered the likelihood of incapacity (LR, 0.14; 95% CI, 0.06-0.34). Of 9 instruments compared with a gold standard, only 3 are easily performed and have useful test characteristics: the Aid to Capacity Evaluation (ACE) (LR+, 8.5; 95% CI, 3.9-19; negative LR [LR−], 0.21; 95% CI, 0.11-0.41), the Hopkins Competency Assessment Test (LR+, 54; 95% CI, 3.5-846; LR−, 0; 95% CI, 0.0-0.52), and the Understanding Treatment Disclosure (LR+, 6.0; 95% CI, 2.1-17; LR−, 0.16; 95% CI, 0.06-0.41). The ACE was validated in the largest study; it is freely available online and includes a training module.

    Conclusions Incapacity is common and often not recognized. The MMSE is useful only at extreme scores. The ACE is the best available instrument to assist physicians in making assessments of medical decision-making capacity.]

Study Questions

All of the following are legally relevant criteria for a physician establishing decision-making capacity in a patient EXCEPT:

 

The answer is A.  Respecting patients and acting justly are two key ethical principles. Tenets of respecting patients include obtaining informed consent, avoiding deception, maintaining confidentiality, caring for patients who lack decision-making capacity, and acting in the best interests of patients. Determining whether a patient has decision-making capacity can be a challenge for physicians. Legal standards vary across jurisdictions, but generally encompass the four criteria listed in options B, C, D, and E as originally elucidated by Grisso and Appelbaum in the New England Journal of Medicine. A patient simply being oriented to person, place, and time is not adequate to establish decision-making capacity.

 


You receive a phone call from the nurse of a nursing home telling you that your patient refused to take her medications for the third day. She is 75 years old, competent and has disability of both lower limbs.

What is your best response to the nurse’s concern?

A- Ask the patient for the reason of refusal and don’t force her to take her medications

B- Get help of the staff in the nursing home to force the patient to take her medications as you are responsible for any complications that could happen to her if she doesn’t take her medications.

C- Call her family and address this issue with them to find the best way to solve this problem to avoid any blame if something happens to her

D- Tell the patient that if she doesn’t take her medications then, there is no need to take any future appointments

Answer

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