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
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?