Patients' Capacity to Authorize
(or Refuse) Treatment

In most cases, it is easy to tell whether a patient is able to give informed consent. Most adults, most of the time, are obviously capable of understanding the relevant facts of their case, appreciating the consequences of their various options, and authorizing (or refusing to authorize) a recommended treatment plan. However, in some types of medicine, notably emergency and palliative care, the patient's decision making ability is quite frequently more difficult to assess. Should a 40 year old man in full cardiac arrest, who has been responsible for himself, a business, and a family for 20 years, be heeded when, apparently in a panic, he refuses defibrillation? How does one assess the competence of a cancer patient who has had several strokes, has difficulty communicating, and seems to be under the control of her eldest daughter?

My purpose in this article is to present some basic ethical considerations pertaining to patients' capacity (or "competence") to make decisions about their own medical treatment. The various instruments and techniques for assessing competence, such as the MacArthur Competence Assessment Tool for Treatment, which can be more or less adequate to this normative task, are not within the scope of the questions I will be addressing. The topic of this paper is closely related to the complex issues of informed consent and patient autonomy. Although limited space prevents discussion of these topics, my hope is that the following analysis of capacity will incite further reflection and discussion on these fundamental principles of good health care.

In the first place, it is necessary to distinguish the ethical or psychological meaning of capacity from the institutional, especially legal, meaning of the term. A person who is certainly competent ethically may not be competent according to legal or institutional rules. For example, a 14 year old may be ethically competent to make decisions about medical treatment, but in some jurisdictions 14 year olds are legally, and thus institutionally, incompetent. The converse is also true. A person may have been found legally or institutionally competent, having scored the requisite level on tests, and yet be ethically incompetent because of emotional insecurity. In ethics, the question is whether a person is capable of giving autonomous authorization for treatment. In law and for institutional purposes, the question is whether the patient has given valid evidence of competence and thus accepted liability for its execution in accordance with professional standards of due care.

It is also necessary, in the second place, to distinguish the general meaning of competence from its specific meaning in the context of health care. The basic meaning of "competence" is the ability to perform a task. Accordingly, there are degrees of competence. For example, a surgeon is obviously more competent to authorize surgery for herself than is someone with no background or experience in medicine. However, in the health care context, competence has a threshold or gate keeping function. Its purpose is to discriminate between those who meet a standard of decision making capacity and those who do not. In determinations of competence, therefore, all who meet the standard are equally competent; there is no further discrimination of ability between the surgeon and the ordinary adult. Likewise, all who do not meet the standard are equally incompetent; responsibility for their health care falls on others' shoulders, that is, surrogate decision makers (usually the closest family member).

Thirdly and finally, it is necessary to distinguish carefully between personal autonomy and capacity. An autonomous person is generally in control of her or his actions and can be held accountable for them; in other words, she or he is able to run her or his own life. A competent person, by contrast, is able to be in control of one kind of action or decision. There is evidently a close connection between personal autonomy and competence in decision making in health care. As I noted in my opening paragraph, adults are usually competent. The reason for this is that they have learned how to act and deal with situations in many different areas of life. However, while every adult should be considered competent to make autonomous authorizations respecting his or her health care, even a high degree of personal autonomy is not sufficient to guarantee competence. In other words, competence is specific to the type of task to be performed. This means both that someone who is autonomous is not necessarily competent and that someone who is not autonomous or who has a relatively low degree of autonomy (for example, a mildly mentally retarded individual) is not necessarily incompetent.

The specific nature of competence has important practical implications. First, an incompetent patient should not be considered incapable of making all decisions. An assessment of incompetence does, in fact, remove power of authorization from patients with respect to health care, not just with respect to a particular decision. It does not, however, in any way restrict patients' control over other areas of their lives. Second, competence is specific not only to the type of decision but also to time. Profoundly incompetent patients may have moments of lucidity in which they are capable of deciding for themselves. In other words, they are intermittently incompetent. Foresight and patience are needed to take advantage of these opportunities for maximizing respect for patients' dignity by taking any wishes they might communicate into account in devising a plan of treatment. And third, while evidence of incompetence in other areas of life (financial decisions, ability to drive, etc.) does raise the question of incapacity in health care, it is not evidence of incapacity.

1. understands the material information (the need to give consent, the nature of the proposed treatment, the risks and benefits, and the consequences of the options [including non treatment]);
    
   
2. is able to judge in light of his or her own values;
    
   
3. intends the outcome; and
    
   
4. is able freely to communicate the decision.

1. Has the patient understood the information so as to use it in reaching a decision that is appropriate for his or her personal situation? This requirement goes beyond disclosure of relevant facts to the question of what might make a difference to this particular person. Relevance is not the same as materiality. For example, a small scar that would not be of any concern to most people might be important to a model.
    
   
2. Is the patient able to make a judgment on the basis of his or her values? For example, a knowledgeable and experienced patient may be so fearful of medical interventions that he is unable to make a reasoned choice. This does not involve passing judgment on the soundness of the patient's values, but it does require that the patient assess the situation in the light of her or his values, whatever they may be, rather than on the basis of overwhelming fear or a compulsive desire to please.
    
   
3. Does the patient intend the outcome of his or her decision? In other words, does the patient want things to turn out as they probably will if she or he acts in accordance with this decision? For example, if a patient refuses to authorize a relatively minor and painless life-saving procedure, and there are no values in question, then one has strong evidence that the patient does not intend the outcome (death) and is not making an autonomous choice.
    
   
4. Can the patient freely communicate his or her wish? A health care professional should ensure that the patient can communicate what he or she genuinely desires, without being subject to force, manipulation, or coercion from others. This last question recognizes that not only internal limitations, such as cognitive or psychological deficits, but also external factors, such as misleading disclosure or a violent and domineering spouse, may prevent autonomous choice.

Conclusion:

1. Questions about patient capacity often arise from disagreement between the patient and the physician in high-risk situations. Disagreement with the patient's decision is not in itself grounds for questioning his or her capacity.
    
   
2. An assessment of incapacity is relatively drastic. It may be better to override a particular decision rather than declare a patient incompetent. Even if protection from legal action makes resorting to such an assessment advisable, in reality this may well be a case of justified paternalism rather than incapacity.
    
   
3. Incapacity does not reduce the moral call to respect that patient's capacity. A clinician's imagination and wisdom come into play as he or she strives to discover areas in which a legally incompetent patient might still exercise some measure of control and as the health care team looks for ways to effect a return to competence.

- Robert Kennedy PhD

Thanks to Dr. Stephen Baldner of the Department of Philosophy at St. Francis Xavier University in Antigonish Nova Scotia for reviewing the draft copy of this article.

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