Competence & Capacity

ISD II – PsychiatryNov. 12, 2002Ethics/Humanities/Health LawAndrew Latus**Some material stolen from Daryl Pullman and Barb Barrowman

Objectives

Define competence and capacity

Discuss their ethical and legal significance

Consider how they apply in hard cases

A Case of Apotemnophilia

Apotemnophilia = desire for amputation (p. 285)

Mr. A., 65 years old, wants to have a healthy limb amputated

“I am not happy with my present body, but long for a peg-leg.”

Two Questions

Two questions:

Would it be wrong for a surgeon to perform the amputation?

Would you perform the amputation?

Capacity vs. Competence

These terms are sometimes used interchangably, yet supposedly there’s a difference

What is it?

Capacity

“[T]he ability to understand information relevant to a treatment decision and to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.” (Bioethics for Clinicians)

Really a definition of an adequate degree of capacity for medical decision making

Capacity vs. Competence

Capacity refers to an ability

“having capacity” Capacity comes in degrees

Competence refers to a property or characteristic a person possesses

“being competent” Competence (relative to a particular decision) is all

or nothing.

Competence & Competence Defined

Capacity = the degree to which one is able to understand the information relevant to a treatment decision and appreciate the reasonably foreseeable consequences of a decision or lack of a decision.

Competence = being able to understand information relevant to a treatment decision and to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.

We’ll just talk of capacity for remainder of class

Capacity for what?

Capacity is specific to a particular decision

A person may possess the capacity to make some decisions but not others

Capacity can change over time

e.g. delirium, drugs, course of illness and treatment

A Logical Point About Capacity

If you’re worried about a patient’s capacity to refuse some treatment, you should also worry about his capacity to accept it

Worries about capacity sometimes go away when the patient comes to accept our recommendation for treatment.

E.g., we worry about the patient’s ability to refuse treatment for chemotheraphy but not his ability to accept it

This doesn’t make sense with regard to capacity

Why does capacity matter?

Two kinds of reason

MoralLegal

Moral Reason #1: The Importance of Consent

Capable patients are, by definition, able to give informed consent to treatment

The importance of informed consent is supported both by

The principle of autonomy – respect for persons requires respecting their informed decisions

The principles of beneficence/non-maleficence – generally, an informed patients is a good judge of what broad sort of treatment is in his/her best interest

Moral Reason #2: Beneficence Toward Incapable Patients

An assessment of capacity helps us figure out what matters morally

In the case of an incapable patient, we no longer have recourse to the principle of autonomy.

The principles of beneficence/non-maleficence require that incapable people be protected from making decisions that are harmful or that they would not make if capable

Why does capacity matter legally?

In law, capable patients entitled to make their own informed decisions

If patient incapable, physician must obtain consent from designated substitute decision-maker

Advance Health Care Directives Act (NL)

Presumption of capacity for adults

For minors, check provincial legislation on mature minors (NB), child welfare act, etc.

Aids to Capacity Assessment

General impression of capacity from clinical encounter

Cognitive function testing, e.g., MMSE

Specific capacity assessment tools, e.g., ACE

Mini Mental State Exam (MMSE)

Advantages

Reliable Easy to administer Familiar

Problem:

Although cognition and capacity related, they are not identical Does not evaluate several cognitive functions (e.g., judgment,

reasoning) that are relevant to capacity Does not address delusions

Aid to Capacity Evaluation (ACE)

Clinician discloses information relevant to the treatment decision, then evaluates person’s ability to understand this information and appreciate the consequences of his/her decision

Developed at U of T’s Joint Centre for Bioethics

Based on Ontario’s Consent to Treatment Act

Prompts clinicians to probe 7 relevant areas, provides sample questions and scoring

Seven Areas to Consider

1. Ability to understand medical problem2. Ability to understand proposed treatment3. Ability to understand alternatives (if any)4. Ability to understand option of refusing treatment5. Ability to appreciate reasonably foreseeable

consequences of accepting proposed treatment6. Ability to appreciate reasonably foreseeable

consequences of refusing proposed treatment7. Ability to make decision not substantially based on

delusions or depression

Some Strengths & Weaknesses

Strengths

Clinically feasible, relatively quick Flexible Useful format for documentation

Weaknesses

Only as good as accompanying disclosure Difficulty of assessing impact of delusions or depression Factors may interfere with effective communication e.g.

language barrier

When to Consider Expert Assessment

If unsure of assessment

If patient (or family) challenges finding

If clinician suspects that a decision is based substantially on delusions or depression

Trying Out the A.C.E. – Mr. G.

Mr. G. (see Bioethics for Clinicians)

42 years old Receiving treatment for chronic schizophrenia. Unemployed but functions independently in the community. Rarely leaves his apartment Believes that his neighbours break into his house and steal

his money when he is out, Physician makes house call because Mr. G. is complaining of

a sore throat Throat swab reveals an infection. Physician recommends antibiotic therapy

Assessing Mr. G

Clinician explains that the pills are to treat the sore throat but may cause diarrhea or a rash.

Asks Mr. G to review the information to ensure

Mr. G: "You're giving me these pills to help my throat. If I get diarrhea or any skin problems I should stop and let you know."

Decision to accept treatment is not based on a delusion, but on a desire for symptom relief.

Clinician concludes Mr. G. has the capacity to accept treatment

Applying the A.C.E. to Mr. A

Mr. A. has desired the peg-leg since at least age 10 (p. 288)

“Unconsciously such a peg-leg became synonymous with happiness…” (288)

“the realization of [my desire for a peg-leg] has become indispensable for my personal happiness…”(288-9)

“Naturally over the years I have thought of many arguments against amputation, have … considered them and rejected them... It is not normal. But what is normal and who is normal?” (289)

“No one has the right to deny or keep me from this way of life.” (289)

A Final Thought About Capacity

When it comes to treating religious beliefs as delusions the numbers seem to count

Most seem to think that adult Jehovah’s Witnesses have the capacity to refuse, on religious grounds, treatment involving blood transfusions

What about singular or rare religious grounds?

E.g., what if Barney the Dinosaur, my personal saviour, tells me to seek an amputation?

Are we consistent in thinking about religious reasons?