Competency to Make Medical Decisions

Consent is a legal-medical doctrine that stems from the common law tort of trespass, due process, and court cases of note; including Schloendorf v. New York Hospital, the Nazi War Crimes Tribunal (Medical Cases), Salgo v. Leland Stanford Junior University,  Cobbs v. Grant, and Reise v. St. Mary’s Hospital.   As a legal doctrine, its elements are (1) disclosure, (2) voluntariness, and (3) competence.  It is not absolute, however.  Exceptions to consent include: (1) emergencies; (2) patient requests not to be informed; and (3) “therapeutic privilege.”  Lack of informed consent was once considered battery.  For policy reasons, it is now malpractice. 

Capacity is a clinical determination that addresses the integrity of mental functions.  Competency is a legal determination that addresses societal interest in restricting a person’s right to make decisions or do acts because of incapacity.  The fundamental issue is whether the person can be held accountable for the consequences of his or her decisions and actions.  Both capacity and competency may be global or specific.  Medical consent is specific.  Because it is specific, it cannot be assessed in the abstract.  Its determination depends on the decision, the skills necessary to make it, and the degree to which illness impairs those skills.  Patients are legally presumed competent to consent or refuse medical care.  The presumption of competence, however, is rebutted by evidence of incapacity. 

Incapacity is present if a mental status defect renders the individual unable to understand and knowingly and intelligently act upon consent information using rational processes.  This is a determination made in the first instance by the treating doctor. A competent decision remains valid even after the patient lapses into incompetence.  The law, in its simplicity, however, presumes the incompetent patient is unconscious or demented rather than impaired yet still capable of acting.  When this is not the case, psychiatric consultation may be requested to opine on competency by assessing mental status defects and their impact on capacity to give or withhold consent.

Consent is legally presumed in an emergency.  An emergency exists when care is required to alleviate severe pain or when a condition, which if not immediately treated, will lead to serious disability or death – and the patient is incompetent.  The emergency exception assumes the physician does not know the competent wishes of the patient and that no surrogate decision maker is availability. The emergency exception allows treatment to correct the emergency. 

If a situation is not an emergency, consent must be obtained from the patient’s legal representative; i.e. durable power of attorney for health care or guardian/conservator of person to whom decisional powers have been granted.  If there is no legal representative, a court order is appropriate.  A court order requires a probability that the condition if untreated will become life endangering or result in a serious threat to the physical or mental health of the patient.  A petition with an attached medical declaration must be filed in Superior Court.  A lawyer will be appointed to represent the patient.  However, built-in procedural delays can be waived for good medical cause.  In many cases, obtaining a court order is overly intrusive as well as cumbersome, expensive, and time consuming.  In selected situations that are neither emergent nor chronic, the California Medical Association suggests treating doctors rely on medical custom -- so long as there is no question that the patient if competent would refuse consent. 

Established medical custom allows the physician to turn to close family members (in the following order): spouse or registered domestic partner, adult child, parents, adult brother/sister, and grandchildren. The treatment must be in the best interests of the patient and the substituted consent should, to the extent known, reflect the patient’s wishes.  The motives of the surrogate should not be suspect and surrogates of equal rank cannot be in conflict. 

There will be infrequent situations involving unconscious or demented, non-protesting patients who have no surrogate decision maker where the physician, will choose to proceed with necessary treatment.  Such situations pose some degree of legal risk to the physician.  However, good care and better charting will minimize the risk.  Lack of consent is battery.  Lack of informed consent is a malpractice and liability hinges on whether a reasonable patient would have consented.  If incompetence is likely to persist and there is no emergency, guardianship proceedings are indicated.

Protocol

Legally, a patient is incompetent if unable to do the following: (1) respond knowingly and intelligently to questions about recommended treatment; (2) participate in treatment decisions by means of rational thought processes; and (3) understand the items of minimum basic medical treatment information with respect to that treatment.  Basic medical treatment information includes: the nature and seriousness of the illness, the nature of the treatment, the probable degree and duration of any benefits and risks of any medical intervention that is being recommended by the person's health care providers, and the consequences of lack of treatment, and the nature, risks, and benefits of any reasonable alternatives.

Requests for psychiatric consultation arise when a patient is not globally incompetent (unconscious or senile) and is able to evidence a choice - usually a refusal of care - and the primary provider wants a second opinion on the competency of the refusal.  As you know, LPS does not authorize medical treatment - only psychiatric treatment.  Your role in these cases is to examine the patient and determine if the patient is incompetent for informed consent purposes; and, if so, whether a mental status defect is responsible for it.  If a court petition under Probate Code §3208 is anticipated, your consultative note should be detailed enough to serve as the declaration that the primary provider will attach to the court petition. The primary provider, of course, is responsible for explaining the purely medical issues of the case. Of course, if the patient independently meets LPS criteria, more will be required.

Before examining the patient, ask the primary provider to explain to you the proposed treatment, the informed consent information, the risk to the patient should treatment be withheld, and the nature of attempts to obtain consent.  Keep in mind that the scope of information given the patient who is refusing care is broader than information that must be given the consenting patient.  You will then examine the patient to determine: (1) did the patient make a decision; (2) was the decision based on informed consent; (3) is there a mental status defect; (4) is the mental status defect the causal link between the treatment refusal and the impaired consent.  If you determine that patient is incompetent to refuse the recommended care, the next move is up to the primary care provider. 

Informed Consent

Probate Code §811 Mental Deficits

 PROBATE CODE

§813 

(a) For purposes of a judicial determination, a person has the capacity to give informed consent to a proposed medical treatment if the person is able to do all of the following:

(1) Respond knowingly and intelligently to queries about that medical treatment.

(2) Participate in that treatment decision by means of a rational thought process.

(3) Understand all of the following items of minimum basic medical treatment information with respect to that treatment:

      (A) The nature and seriousness of the illness, disorder, or defect that the person has.

(B) The nature of the medical treatment that is being recommended by the person's health care providers.

(C) The probable degree and duration of any benefits and risks of any medical intervention that is being recommended by the person's health care providers, and the consequences of lack of treatment.

(D) The nature, risks, and benefits of any reasonable alternatives.

(b) A person who has the capacity to give informed consent to a proposed medical treatment also has the capacity to refuse consent to that treatment.

§3204

The petition [to judicially determine medical decisional incompetence] shall state, or set forth by a medical declaration attached to the petition, all of the following known to the petitioner at the time the petition is filed:

(a) The condition of the patient's health that requires treatment.

(b) The recommended health care that is considered to be medically appropriate.

(c) The threat to the patient's condition if authorization for the recommended health care is delayed or denied by the court.

(d) The predictable or probable outcome of the recommended health care.

(e) The medically available alternatives, if any, to the recommended health care.

(f) The efforts made to obtain consent from the patient.

(g) If the petition is filed by a person on behalf of a health care institution, the name of the person to be designated to give consent to the recommended health care on behalf of the patient.

(h) The deficit or deficits in the patient's mental functions listed in subdivision (a) of Section 811 that are impaired, and an identification of a link between the deficit or deficits and the patient's inability to respond knowingly and intelligently to queries about the recommended health care or inability to participate in a decision about the recommended health care by means of a rational thought process.

(i) The names and addresses, so far as they are known to the petitioner, of the persons specified in subdivision (b) of Section 1821.

§3206 

(a) Not less than 15 days before the hearing, notice of the time and place of the hearing and a copy of the petition shall be personally served on the patient, the patient's attorney, and the agent under the patient's power of attorney for health care, if any.

(c) For good cause, the court may shorten or waive notice of the hearing as provided by this section.  In determining the period of notice to be required, the court shall take into account both of the following:

(1) The existing medical facts and circumstances set forth in the petition or in a medical declaration attached to the petition or in a medical declaration presented to the court.

(2) The desirability, where the condition of the patient permits, of giving adequate notice to all interested persons.

§3207 

Notwithstanding Section 3206, the matter presented by the petition may be submitted for the determination of the court upon proper and sufficient medical declarations if the attorney for the petitioner and the attorney for the patient so stipulate and further stipulate that there remains no issue of fact to be determined.

§3212

Nothing in this part shall be construed to supersede or impair the right of any individual to choose treatment by spiritual means in lieu of medical treatment, nor shall any individual choosing treatment by spiritual means, in accordance with the tenets and practices of that individual's established religious tradition, be required to submit to medical testing of any kind pursuant to a determination of capacity.