Competency and Capacity to Choose

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?