Competency and Competency and Capacity to Capacity to ChooseChoose

Which Term?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

Errors to AvoidErrors 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

Ingredients of capacityIngredients 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

Ideal Notion of CapacityIdeal 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)

Ideal Notion of CapacityIdeal Notion of Capacity

• Buchanan and Brock: “Fixed minimum threshold conception” of competence

• Give 5 reasons for rejecting and using sliding scale instead

Ideal YardstickIdeal 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

Ideal Yardstick?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?

Possible ExplanationsPossible 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

Buchanan and BrockBuchanan 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

Buchanan and BrockBuchanan 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

Buchanan and BrockBuchanan 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

Buchanan and BrockBuchanan 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

Buchanan and BrockBuchanan 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”

Buchanan and BrockBuchanan 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”

Gawande’s “Mr. Howe” caseGawande’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?