Competence & Capacity
ISD II – Psychiatry
Nov. 12, 2002
Ethics/Humanities/Health Law
Andrew Latus*
*Some material stolen from Daryl Pullman and Barb Barrowman
Objectives

Define competence and capacity
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Discuss their ethical and legal
significance
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Consider how they apply in hard cases
A Case of Apotemnophilia

Apotemnophilia = desire for amputation
(p. 285)
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Mr. A., 65 years old, wants to have a
healthy limb amputated
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“I am not happy with my present body, but
long for a peg-leg.”
Two Questions

Two questions:

Would it be wrong for a surgeon to perform
the amputation?

Would you perform the amputation?
Capacity vs. Competence

These terms are sometimes used
interchangably, yet supposedly there’s a
difference

What is it?
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
Capacity vs. Competence

Capacity refers to an ability

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“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.
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
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
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
Why does capacity matter?

Two kinds of reason
Moral
 Legal

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
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/nonmaleficence require that incapable people be
protected from making decisions that are
harmful or that they would not make if capable
Why does capacity matter legally?

In law, capable patients entitled to make their
own informed decisions


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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.
Aids to Capacity Assessment

General impression of capacity from
clinical encounter

Cognitive function testing, e.g., MMSE

Specific capacity assessment tools, e.g.,
ACE
Mini Mental State Exam (MMSE)

Advantages

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Reliable
Easy to administer
Familiar
Problem:
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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
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
Seven Areas to Consider
1.
2.
3.
4.
5.
6.
7.
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
Some Strengths & Weaknesses

Strengths

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Clinically feasible, relatively quick
Flexible
Useful format for documentation
Weaknesses

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Only as good as accompanying disclosure
Difficulty of assessing impact of delusions or depression
Factors may interfere with effective communication e.g.
language barrier
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
Trying Out the A.C.E. – Mr. G.

Mr. G. (see Bioethics for Clinicians)

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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
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
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)
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?

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E.g., what if Barney the Dinosaur, my personal saviour, tells me
to seek an amputation?
Are we consistent in thinking about religious reasons?