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Legal News
Deciding When Incompetence Hinders Medical Decision Making
Psychiatric News
Volume 38 Number 10 page 35-36

When a patient refuses recommended medical treatment or seems confused about treatment options, a psychiatrist may be called in to determine whether the patient is mentally competent to give informed consent to treatment. But the elements of a comprehensive competency exam and the criteria that should point a psychiatrist to a conclusion are not not always clear.

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José Maldonato, M.D.: "Even psychotic patients may have clear reasons for refusing treatment."

To help remedy that situation, forensic psychiatrist José Maldonato, M.D., described the critical factors and decisions necessary to determine whether a patient is in fact competent to make his or her own medical decisions.

Maldonato is chief of the Medical and Forensic Psychiatry Section in Stanford University’s department of psychiatry and behavioral sciences.

Speaking at the annual meeting of the American College of Forensic Psychiatry last month in Rancho Mirage, Calif., Maldonato pointed out that courts have set the mere ability to express a choice as the "threshold issue, without which there is no competence."

Once that is established, courts will want to know whether the patient is able to demonstrate adequate understanding of five factors—that an illness exists; what treatment is being proposed and why; the potential risks, benefits, and side effects of the treatment; alternative treatments and expected outcomes; and expected outcome of refusing treatment.

In addition to evaluating the patient’s understanding, the consulting psychiatrist also has to assess whether the patient "demonstrates sufficient appreciation" of the fact that he or she is suffering from a serious medical problem—that is, beyond knowing that an illness exists—and the consequences of accepting or refusing various treatment options. It is in conjunction with these determinations that the psychiatrist has to ascertain that the patient "does not suffer from a mental defect or illness" that could prevent the patient from grasping the relevance of his or her illness and the value and risks of proposed treatments, Maldonato said.

Patients, of course, may disagree with their physician’s recommendations. "Thus, in order to fail the appreciation criteria," he explained, "patients’ dissenting choices must be based on premises or beliefs" that meet at least one of the following criteria:

• The belief must be substantially irrational, unrealistic, or a considerable distortion of reality. Thus, the clinician does not question the patient’s choices, but the rational quality of the premises on which they are based.

• The belief is a consequence of impaired cognition or affect.

• A cultural or religious belief is not the sole motivation underlying the premise.

• The belief must be relevant to the patient’s treatment decision. The presence of a psychosis is not sufficient ground to declare a patient incompetent; it must interfere with the treatment decision. "Even psychotic patients may have clear reasons for refusing treatment," Maldonato said.

He cautioned psychiatrists to keep in mind that patient refusal is not the only situation prompting a competency evaluation. It can also arise when "a patient readily consents to or asks for a particularly risky procedure or exhibits changes in mental status."

Once the psychiatrist determines whether a patient demonstrates sufficient appreciation, the next task, Maldonato noted, is to assess whether the patient uses "appropriate reasoning"—that is, if the patient can "manipulate in a logical and rational way relevant information in order to weigh treatment options and reach a decision in a logical manner."

He emphasized that "idiosyncratic but rational choices, even if in disagreement with the clinician, should be respected as long as understanding, appreciation, and reasoning are intact."

Also crucial, he said, is that psychiatrist consultants understand the reason they were asked to evaluate the patient’s competency. This includes learning the dynamics among the patient, family, and medical staff. A patient’s family member, for example, may spur a consultation because he or she is upset that the patient will not go along with a treatment that the relative insists the patient accept.

Next, Maldonato said, the psychiatrist consultant needs to "prepare the patient for the evaluation," which means explaining the purpose of the evaluation and assuring that the patient "has been adequately informed about his or her medical illness and options for treatment."

Maldonato also offered several key principles—he called them "pearls"—that psychiatrists should keep in mind when evaluating a patient for competency to make decision about their medical care. First, he stressed, remember that "legal competence is related to, but not the same as, impaired mental state."

Legal competence in this context refers to "functional deficits" that may render the person unable to understand, appreciate, and reason with pertinent information. "The presence of mental illness, mental retardation, or dementia, per se, does not render a person incompetent. Even involuntary commitment does not render a patient incompetent to participate in medical decision making."

And legal competency is not immutable; it can change. "Incompetence can be temporary," Maldonato said, "as when mental status fluctuates," for example, when delirium is a symptom.

Finally, he noted, there are exceptions to the rules of informed consent such as in the case of a medical emergency; when a patient specifically waives the right to decide, stating that he or she trusts a relative to make the decision; and in the instances of "therapeutic privilege," when a physician believes that telling the patient about the risks or consequences of a procedure "will cause so much damage that the patient would be better off not knowing," a situation Maldonato characterized as "very paternalistic." ▪

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José Maldonato, M.D.: "Even psychotic patients may have clear reasons for refusing treatment."

To help remedy that situation, forensic psychiatrist José Maldonato, M.D., described the critical factors and decisions necessary to determine whether a patient is in fact competent to make his or her own medical decisions.

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