Competence & Capacity

1. Competence & Capacity ISD II – Psychiatry Nov. 12, 2002 Ethics/Humanities/Health Law Andrew Latus* *Some material stolen from Daryl Pullman and Barb Barrowman

2. Objectives • Define competence and capacity • Discuss their ethical and legal significance • Consider how they apply in hard cases

3. 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.”

4. Two Questions • Two questions: • Would it be wrong for a surgeon to perform the amputation? • Would you perform the amputation?

5. Capacity vs. Competence • These terms are sometimes used interchangably, yet supposedly there’s a difference • What is it?

6. 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

7. 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.

8. 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

9. 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

10. 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

11. Why does capacity matter? • Two kinds of reason • Moral • Legal

12. 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

13. 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

14. 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.

15. Aids to Capacity Assessment • General impression of capacity from clinical encounter • Cognitive function testing, e.g., MMSE • Specific capacity assessment tools, e.g., ACE

16. 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

17. 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

18. Seven Areas to Consider • Ability to understand medical problem • Ability to understand proposed treatment • Ability to understand alternatives (if any) • Ability to understand option of refusing treatment • Ability to appreciate reasonably foreseeable consequences of accepting proposed treatment • Ability to appreciate reasonably foreseeable consequences of refusing proposed treatment • Ability to make decision not substantially based on delusions or depression

19. 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

20. 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

21. 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

22. 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

23. 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)

24. 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?