1. Competency and Capacity to Choose

2. Which Term? Competency: Best restricted to legal use when a formal procedure has been conducted Capacity to choose: best used to describe the clinical assessment of patients by health professionals “Capacity to choose” cumbersome to say so often use “competency” for short

3. Errors to Avoid Allow persons to die at their request when actual capacity to choose is deficient Keep patients alive contrary to their request when they possess full capacity

4. Ingredients of capacity Communicate participation Understand relevant data and how they apply Conceive values (what is good for me) Deliberate: apply values to one’s understanding of options and their pros and cons

5. Ideal Notion of Capacity “Objective” Based only on how a person’s mind works Is not based at all on what the person actually chooses (e.g., to accept or refuse life-prolonging treatment) This assures that we do not sneak paternalism into the back door (anyone I disagree with lacks capacity)

6. Ideal Notion of Capacity Buchanan and Brock: “Fixed minimum threshold conception” of competence Give 5 reasons for rejecting and using sliding scale instead

7. Ideal Yardstick Objective Easy to use Gives clear answer All staff can agree on what outcome means e.g., Mini-Mental-Status exam, Glasgow Coma Scale

8. Ideal Yardstick? What are we to make of the fact that no such yardstick has been formulated-- despite the central importance of respect for autonomy in our present system of ethics and law?

9. Possible Explanations Capacity to choose is a very slippery concept –decision specific –varies from day to day, even hourly It is “decided not discovered”-- there is no really objective standard

10. Buchanan and Brock Sliding scale concept The more we see decision as benefiting the patient, the lower the threshold needed to prove that patient has the capacity to choose Attempts to provide better balance between respect for patient autonomy and duty to avoid harm and provide benefit

11. Buchanan and Brock Controversial claim: I may be considered competent to say “yes” to a given medical treatment and yet be incompetent to say “no” to the same treatment Seems to say: you have right of informed consent but no right of informed refusal

12. Buchanan and Brock Applying to Dax case Calculate expected risk-benefit balance of allowing to die vs. continued graft/tank If substantially worse require maximal level of competence Assess Dax to see if he meets that maximal level

13. Buchanan and Brock Two ways to practice “hidden” paternalism: Use one’s own values and not Dax’s to decide what is “harm” and “benefit” Attach undue weight to any flaws or inconsistencies in Dax’s decision- making process

14. Buchanan and Brock Which seems more accurate? “We require a higher level of competence when a person seems to be making a ‘mistaken’ decision” “We need to spend more time and energy assessing competence when a person seems to be making a ‘mistaken’ decision”

15. Buchanan and Brock Which formulation is better (more respectful of the patient)? “You lack competence so I have no duty to adhere to your choice” “You seem to be making a mistaken decision and so I have an increased duty to try to persuade you to reconsider”

16. Gawande’s “Mr. Howe” case “Mr. Howe really lacked the capacity to make an appropriate decision, so we had no choice but to intubate” “Mr Howe had reasonable capacity to choose, but I really thought it was not in his best interests to forgo the respirator and so I elected to intubate against his wishes” Which is more honest formulation?