Handout 4: The Assessment of Competence

Legal Principles

Clinicians tend to talk of competence; the law uses the term capacity. In a legal context, capacity refers to a person's ability to perform specific acts such as: making a will; making a contract, being able to manage his/her property and affairs; and giving or refusing consent to medical treatment. Clinicians might be asked to comment on, or formally assess, a patient's capacity (competence) to perform such acts. Is Mr X competent to make a will? Is he competent to consent (or refuse) a particular medical treatment?

The legal approach to the assessment of capacity had been developed through case (common) law: it is not covered by statute. Such case law has established a number of principles.

Capacity is 'function specific'

A person is not 'globally' competent or incompetent. One can only talk of capacity to do a particular thing. Thus a patient may be competent to make a will, but incompetent to consent, or refuse consent, to a particular operation (or vice versa). Indeed, a patient may be competent to consent to one treatment but not to another. The general statement to this effect was made as follows:

"the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained".

Gibbons v Wright (1954) 91 CLR 423, 428].

An imprudent decision is not, by itself, sufficient grounds for incapacity

A person should not be regarded as lacking capacity merely because she is making a decision, which is unwise, or against her best interests. An unwise decision might alert a doctor to the need for assessment of capacity; but that assessment must be made by analysing the way the decision is made (see below), not from the decision itself.

The standard of proof is ' the balance of probabilities'

The usual standard for proof in civil cases is ' balance of probabilities' - as opposed to 'beyond reasonable doubt'. Thus, in assessing capacity, courts will be concerned with whether the balance of probabilities favours capacity or lack of capacity.

Clinical assessment of competence

Step 1. What does the patient need to decide?

Analyse the key components of the decision. For example, with regard to consent to treatment, the following components are important:

1. To understand what the treatment is.
2. To understand why the treatment is being proposed (including the nature and severity of the suspected or diagnosed illness).
3. To understand the alternative treatment options (including no treatment).
4. To understand benefits and risks of the proposed treatment and of alternative options.
5. To understand the consequences of the treatment, and of the alternative treatments.

This scheme can be adapted for other decisions, e.g. making a will etc.

Step 2. Can the person make this decision?

a) Intellectual or cognitive ability

• Does the person have sufficient intellectual ability to understand the five aspects of the treatment outlined above? For this test the standard should not be set too high. It should be considered that most healthy people within the normal range of intelligence posses sufficient ability to make decisions about their own health care and to understand the main points at issue.
• Is the individual able to weigh up the relevant information and assess the pros and cons of the relevant points?
• Can the individual retain information for long enough to be able to use it and thereby come to a decision? Memory impairment, even in absence of other intellectual deficits, may render someone incompetent for a specific task.
• Can the individual understand issues such as severe illness or death? Do they have the experience or sufficient understanding to understand the severity of the illness and the benefits and risks of the treatment?
• Does the individual have sufficient grasp and understanding of the world to make the decision that is asked of them?

b) Factors which might interfere with or impede the individual's capacity to understand

1. Psychiatric condition. A person may be suffering from a mental disorder, which is likely to interfere with any of the above components. A person suffering from a depressive disorder may refuse beneficial treatment because they do not feel themselves worthy of the treatment; or a person may be suffering from a deluded state of mind, which is directly relevant to one of the components. When in doubt, two questions on this issue might be helpful:
   1. Is the person suffering from a mental disorder?
   2. Is the decision unlikely to be what the person would decide if there was no mental disorder?
2. Emotional status and emotional maturity
3. Is the person subject to coercion or threat?
4. Is the person the subject of a relationship of a type, which might have a marked impact on their capacity to freely make a choice? For example, children who are insecurely attached to their parents may be unable to muster sufficient autonomy to be free to make a choice/decision, but instead may feel bound to comply with or accede to parental wishes. Children whose attachment security has been threatened by loss, bereavement, or parental separation, may be particularly susceptible to this influence. Also children who are being maltreated by one or other parent may find it particularly hard to consent freely, through the mechanism of insecure attachment to parent figures.
5. Has the individual's competent decision making been adequately facilitated? In this regard, has the individual had time to process the information? Have different approaches been employed to discuss the information so that the individual had every opportunity to be free from interference, and be able to use their competent ability to the full?

Enhancing capacity

Doctors should try and enable patients to have the capacity to make decisions or carry out normal tasks. This might be done in several ways:

1. By treating any mental disorder which affects capacity.
2. If capacity is likely to improve - to wait, if possible, until it does improve to allow the patient to be properly involved in decisions.
3. To be aware of the possibility that medication may be aversely affecting capacity.
4. If capacity fluctuates (e.g. it depends on the time of day) to assess capacity when the patient is at her best.
5. If there is a need to assess capacity for different tasks/decisions, to assess these separately.
6. To choose the environment which maximizes the patient's capacity - including minimizing distractions - such as excessive noise.
7. To consider whether the person might be helped if a relative or friend is with them.
8. By allowing the person time to take in and process information.
9. My making explanations simple and using aide memoirs, written information and diagrams, where these are likely to be helpful.

For further information on Treating People without their Consent:

• the UK Clinical Ethics Network web site has a detailed discussion around these issues .
• Hope T, Savulescu J, and Hendrick J - Medical Ethics and Law : the Core Curriculum. Edinburgh: Churchill Livingstone, Elsevier Science, 2003. The main text book used for the University of Oxford Medical Ethics and Law course provides more details for both teachers and their students.
• Hope T - Medical Ethics; a Very Short Introduction. Oxford: Oxford University Press, 2004.
• Ashcroft A, Lucassen A, Parker M, Verkerk M, and Widdershoven G - Case Analysis in Clinical Ethics. Cambridge: Cambridge University Press, 2005.