Skip to main content
Hauptrubriken
CME Facharzt-Training Webinare Zeitschriften Bücher e.Medpedia Podcast
Service
Jobbörse Info & Hilfe
Fachgebiete
Anästhesiologie Allgemeinmedizin Arbeitsmedizin Augenheilkunde Chirurgie Dermatologie Gynäkologie und Geburtshilfe HNO Innere Medizin Kardiologie Neurologie Onkologie und Hämatologie Orthopädie und Unfallchirurgie Pädiatrie Pathologie Psychiatrie Radiologie Rechtsmedizin Urologie Zahnmedizin
Themen
Klimawandel und Gesundheit Neues aus dem Markt COVID-19 Praxis und Beruf Seltene Erkrankungen GOÄ & EBM Panorama
Sammlungen
Kasuistiken Algorithmen & Infografiken Blickdiagnosen Arthropedia FlapFinder (für Dermatochirurgen) Videos Kongressberichterstattung Medizin für Apothekerinnen und Apotheker Für Ärztinnen und Ärzte in Weiterbildung Für Medizinstudierende
Erweiterte Suche
Anmelden
nach oben
Health Care Analysis
Erschienen in: Health Care Analysis 2/2015

01.06.2015 | Original Article

Evaluating Medico-Legal Decisional Competency Criteria

verfasst von: Demian Whiting

Erschienen in: Health Care Analysis | Ausgabe 2/2015

Einloggen, um Zugang zu erhalten

Abstract

In this paper I get clearer on the considerations that ought to inform the evaluation and development of medico-legal competency criteria—where this is taken to be a question regarding the abilities that ought to be needed for a patient to be found competent in medico-legal contexts. In the “Decisional Competency in Medico-Legal Contexts” section I explore how the question regarding the abilities that ought to be needed for decisional competence is to be interpreted. I begin by considering an interpretation that takes the question to be asking about the abilities needed to satisfy an idealized view of competent decision-making, according to which decisional competency is a matter of possessing those abilities or attributes that are needed to engage in good or effective or, perhaps, substantially autonomous or rational decision-making. The view has some plausibility—it accords with the way decisional competency is understood in a number of everyday contexts—but fails as an interpretation of the question regarding the abilities that should be needed for decisional competence in medico-legal contexts. Nevertheless, consideration of why it is mistaken suggests a more accurate interpretation and points the way in which the question regarding the evaluation of medico-legal competency criteria is to be answered. Building on other scholarly work in the area, I outline in the “Primary and Secondary Requirements” section several requirements that decisional competence criteria ought to satisfy. Then, in the “Applying the Framework” section, I say something about the extent to which medico-legal competency criteria, as well as some models of decisional competency proposed in the academic literature, fulfil those requirements.
Fußnoten
1
The requirement to respect competent patients’ decision-making is not normally taken to extend to patients’ requests for treatment, however, because the degree to which requests should be respected will depend on such things as availability of resources and consideration of whether what is requested is clinically indicated (see [11], [35]).
 
2
For a helpful review of different assessment instruments, see Dunn et al. [17].
 
3
For the view that competence criteria should include ‘coherency of preferences’ as a component, so to accommodate difficulties in decision-making that people with major depression experience, see Rudnick [32].
 
4
To be clear, then, the claim is not that medico-legal decisional competency criteria fail to set standards against which decision-making can be assessed; for clearly they do. Rather the claim is that the standards that medico-legal decisional competency criteria set are those standards that a person’s decision-making would need to achieve in order for that person to be allowed to retain decisional authority, and there is no a priori reason for supposing that those standards are or should be the same standards that need to be achieved in order for someone’s decision-making to satisfy some kind or decision-making ideal.
 
5
See also Appelbaum’s rejoinder to Charland [6]: “[B]efore expanding the traditional, cognitively oriented elements of standards of competence to include a component focused on emotional capacity, one ought to require compelling evidence that the change will produce more benefit than harm” ([2], p.384).
 
6
Other scholarly work containing relevant and insightful discussion, especially with regards to the need for the law to be proportionate in terms of the restrictions imposed on patients’ autonomy or decision-making, include [25] (especially pp. 60–63), and [12] (especially pp. 524–534).
 
7
The point applies to the evaluation of decisional competency criteria in societies that broadly share the liberal values of most North American and European states. These are the medico-legal criteria and legal contexts with which this paper is concerned. The question of how states that do not share such values are to evaluate decisional competency criteria (where these criteria exist) and weigh conflicting considerations is an extremely complex matter and a question that I am not able to answer at the present time.
 
8
Of course, it is consistent with a fixed view of competence that decisions carrying greater risk should require more rigorous evaluation of competence (see [20]; but for a sceptical note regarding the extent to which healthcare professionals do assess competence, even with regards to more serious treatment decisions, see [23], p. 109). Also, on a fixed view, risks are likely to be relevant to evaluating the best interests of a patient that is found to be incompetent. For instance, a treatment carrying a high risk of harmful side-effects is less likely to be in a patient’s best interests than an equally effective treatment carrying little or no risk of harmful side-effects, especially where there is nothing to suggest that the higher risk option is more in keeping with the patient’s beliefs or values and/or past wishes (see S.4 of the Mental Capacity Act 2005 [26]). It is an important question—but one that cannot be explored here—whether the law should adopt a risk-related or fixed view (but for relevant discussion see [39], [3], [20], [4]).
 
9
This is not to say that there might be some difficult cases such as when, for instance, a person refuses to discuss his or her reasons for consenting to or refusing treatment; thereby making it difficult to assess whether the person has weighed (or even understood) the information relevant to that decision.
 
10
That considerations of proportionality have been accorded a high degree of importance by those responsible for shaping the law on decisional competence is supported by Coggon and Miola when they observe with respect to Lord Donaldson’s judgement in the case of Re T (adult: refusal of medical treatment) [29] that it “is reasonable to suppose that Lord Donaldson MR’s celebrated statement that the law on decision-making should look to capacity rather than rationality is born of a concern to protect plural, incommensurable moral values that exist amongst the population, and to safeguard people from excessive interference in their decision-making” ([12], p. 527; italics in original). Compare also Mr Justice Bodey’s judgement in the case of A Local Authority v A [1] when considering whether the ability to understand information relevant to making a decision should include understanding the emotional and social consequences of refusing contraception—what Bodey J referred to as a ‘social-consequences test’. Bodey J writes at para [61]: “I am persuaded that this wider test would create a real risk of blurring the line between capacity and best interests. If part of the test were to involve whether the woman concerned understood enough about the practical realities of parenthood, then one would inevitably be in the realms of a degree of subjectivity, into which a paternalistic approach could easily creep.” And he goes onto say at para [63]: “To apply the wider test would be to ‘set the bar too high’ and would risk a move away from personal autonomy in the direction of social engineering”. For further discussion, see [24].
 
11
For instance, Dunn et al [18] raise concerns regarding proportionality when they state that “justifying substitute decision-making on the basis of situational vulnerability could lead to interventions that are potentially infinite in scope and application” (p. 241; see also [24]). They seem to raise also worries relating to equity when they remark that the courts’ treatment of vulnerable adults seems to assume a ‘status-approach’ to defining vulnerability according to which a person is considered vulnerable (and thereby in need of court protection) simply by virtue of being disabled or of a particular age, for instance (p. 244). And elsewhere in their commentary, Dunn et al. seem to question whether current legal provision succeeds in being minimally-infringing, when they argue that statutory legislation if introduced would need to recognize that prior to any protective intervention being initiated “every attempt should be made to support adults with autonomous risk management” (p. 253).
 
Literatur
1.
A Local Authority v A (2010) EWHC 1549 (Fam).
2.
Appelbaum, P. (1998). Ought we to require emotional capacity as part of decisional competence? Kennedy Institute of Ethics Journal, 8(4), 377–387.CrossRefPubMed
3.
Berg, J., Appelbaum, P., & Grisso, T. (1996). Constructing competence: Formulating standards of legal competence to make medical decisions. Rutgers Law Review, 48, 345–396.PubMed
4.
5.
Buchanan, A., & Brock, D. (1989). Deciding for others: The ethics of surrogate decision making. Cambridge: Cambridge University Press.
6.
Charland, L. (1998). Is Mr. Spock mentally competent? Competence to consent and emotion. Philosophy, Psychiatry, & Psychology, 5, 67–68.
7.
Charland, L. (1998). Appreciation and emotion: Theoretical reflections on the MacArthur treatment competence study. Kennedy Institute of Ethics Journal, 8, 359–376.CrossRefPubMed
8.
Charland, L. (2001). Mental competence and value: The problem of normativity in the assessment of decisional capacity. Psychiatry, Psychology and Law, 8(2), 135–145.CrossRef
9.
10.
Childress, J., Faden, R., Gaare, R., Gostin, L., Kahn, J., Bonnie, R., et al. (2002). Public health ethics: Mapping the Terrain. The Journal of Law, Medicine & Ethics, 30, 169–177.CrossRef
11.
Coggon, J. (2007). Varied and principled understandings of autonomy in English law: Justifiable inconsistency or Blinkered Moralism? Health Care Analysis, 15, 235–255.CrossRefPubMed
12.
13.
Craigie, J. (2009). Competence, practical rationality, and what a patient values. Bioethics, 25, 326–333.CrossRefPubMed
14.
Culver, C. & Gert, B. (2004). Competence. In: Radden, J. (Ed.) The Philosophy of Psychiatry: A Companion (pp. 258–270). Oxford: Oxford University Press, 258–270.
15.
Damasio, A. (1994). Descartes’ error: Emotion, reason, and the human brain. New York: Grossett & Putnam.
16.
Drane, J. (1984). Competence to give an informed consent. A model for making clinical assessments. Journal of the American Medical Association, 252, 925–927.CrossRefPubMed
17.
Dunn, L., Nowrangi, M., Palmer, B., Jeste, D., & Saks, E. (2006). Assessing decisional capacity for clinical research or treatment: A review of instruments. The Journal of the American Society for Psychical Research, 163, 1323–1334.
18.
Dunn, M., Clare, I., & Holland, A. (2008). To empower or to protect? Constructing the ‘Vulnerable Adult’ in English Law and public policy. Legal Studies, 28, 234–253.CrossRefPubMedCentralPubMed
19.
Freedman, B. (1982). Competence: Marginal and otherwise. International Journal of Law and Psychiatry, 4, 53–72.CrossRef
20.
Grisso, T., & Appelbaum, P. (1998). Assessing competence to consent to treatment: A guide for physicians and other health professionals. Oxford: Oxford University Press.
21.
Grisso, T., & Appelbaum, P. (2006). Appreciating Anorexia: Decisional capacity and the role of values. Philosophy, Psychiatry, & Psychology, 13, 293–297.CrossRef
22.
Herring, J. (2009). Protecting vulnerable adults: A critical review of current case law. Child and Family Law Quarterly, 21, 498–512.
23.
Keywood, K. (2010). Vulnerable adults, mental capacity and social care refusal. Medical Law Review, 18, 103–110.CrossRefPubMed
24.
Keywood, K. (2011). Safeguarding reproductive health? The inherent jurisdiction, contraception, and mental incapacity. Medical Law Review, 19, 326–333.CrossRefPubMed
25.
McLean, S. (2010). Autonomy, consent, and the law. London: Routledge-Cavendish.
26.
27.
28.
Re G (An Adult) (2004) EWHC 2222 (Fam).
29.
Re T (Adult: Refusal of Medical Treatment) (1992) 4 All ER 649.
30.
Re SK (Proposed Plaintiff) (An Adult by Way of her Litigation Friend) (2005) 2 FLR 230.
31.
Re SA (Vulnerable Adult with Capacity: Marriage) (2006) 1 FLR 867.
32.
33.
Szmukler, G., & Holloway, F. (1998). Mental health legislation is now a harmful anachronism. Psychiatric Bulletin, 22, 662–665.CrossRef
34.
Tan, J., Stewart, A., Fitzpatrick, R., & Hope, T. (2006). Competence to make treatment decisions in anorexia nervosa: Thinking processes and values. Philosophy, Psychiatry, & Psychology, 13(4), 268–282.
35.
Uniacke, S. (2013). Respect for autonomy in medical ethics. In: Archard, D. M. Deveaux, N. Manson and D. Weinstock. (Eds.) Reading Onora O’Neill. Routledge. (In Press).
36.
37.
Vollmann, J. (2006). But I Don’t Feel It: Values and emotions in the assessment of competence in patients with Anorexia Nervosa. Philosophy, Psychiatry, & Psychology, 13, 289–291.CrossRef
38.
Welie, S. (2001). Criteria for patient decision making (In) competence: A review of a commentary on some empirical approaches. Medicine, Health Care and Philosophy, 4, 139–151.CrossRef
39.
Metadaten
Titel
Evaluating Medico-Legal Decisional Competency Criteria
verfasst von
Demian Whiting
Publikationsdatum
01.06.2015
Verlag
Springer US
Erschienen in
Health Care Analysis / Ausgabe 2/2015
Print ISSN: 1065-3058
Elektronische ISSN: 1573-3394
DOI
https://doi.org/10.1007/s10728-013-0258-z

Weitere Artikel der Ausgabe 2/2015

Health Care Analysis 2/2015 Zur Ausgabe

Original Article

Privacy by Design in Personal Health Monitoring

Original Article

Kidney Sales and the Analogy with Dangerous Employment

Original Article

Family Group Conferencing: A Theoretical Underpinning

Original Article

Will Artificial Gametes End Infertility?

Original Article

To Transfer or Not to Transfer: The Case of Comprehensive Chromosome Screening of the In Vitro Embryo

Original Article

Food and Beverage Policies and Public Health Ethics