Civil Competencies
July 3, 2008
A list of possible civil
competencies
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Work
Drive
Parent
Make medical decisions
Provide informed consent
Care for oneself/property
Enter into legal contracts
Assessment Steps
(Moberg & Kniele, 2006)
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Interview, including collaterals
Neuropsychological testing
Functional ability assessment
Review of legal standards
Rationales for Civil Competency Rules
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People have the right to self-determination
(personal freedom preserved when possible)
– “It’s your right”
In decision-making, people have the right to
reasonable, full disclosure
Disabled people are entitled to services
(social security determination, etc.)
As before, competency is functional
Guardianship
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What is guardianship (sometimes called conservatorship)?
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delegation, by the state, of authority over person or estate;
general vs. specific guardianship
Who qualifies?
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Incapacited person is “any person who is impaired by reason of
mental illness, mental deficiency, physical illness or disability,
advanced age…or other cause (except minority) to the extent that
he lacks sufficient understanding or capacity to make or
communicate responsible decisions concerning his person”
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More specific rules in some states require finding of inability to
care for personal safety or to attend to food, shelter, clothing, or
medical care, without which physical illness or injury would occur
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de facto (factual) vs. de jure (ruled) incompetence; civil
commitment usually results in de facto incompetency
Guardianship (cont’d)
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Guardianship proceedings generally not rigorous
 Most states allow determination as to whether the alleged
incapable person should attend hearing
 Getting out of incapacity is difficult
 Guardianship services
 Guardianship can be abused
Three issues in guardianship determination
 whether a guardian is needed
 who the guardian should be
 what the guardian should do
Guardianship Questions
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Is a guardian needed?
 only an issue in “de facto” cases
 very loose and informal
 ambiguous standards; most states require finding “threshold” mental
illness
 clinical evaluation: take care to evaluate what the person can and cannot
do
 “Community Competency Scale” a good start, but little empirical data;
requires person to perform actual tasks
 utilize ecological assessment
 home visit useful, analyze typical day
 guardianship of person vs. estate (not really different when estate is not
complex)
Community Competency Scale
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Subscales: (akin to ADL’s)
 Judgment, Emergencies, Acquiring Money,
Compensation for Incapacities, Managing
Money, Communication, Care of Medical
Needs, Adequate Memory, Satisfactory
Living Arrangements, Proper Diet, Mobility,
Sensation, Personal Hygiene, Maintenance
of Household, Utilization of Transportation,
Verbal-Math Skills
Searight, Oliver & Grisso (1983). The Community Competence Scale:
Preliminary Reliability and Validity. American Journal of Community
Psychology, 11, 609.
Guardianship Questions (cont’d)
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Who will be guardian?
 appointment likely a matter of policy or
law; less likely the product of a mental
health practitioner’s opinion
What will the guardian do?
 objective standard: do what actions will
best serve the ward
 subjective standard: do what guardian
thinks is best
 best-interests principle usually applies
Alternatives to Guardianship
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Guardianship is expensive (several $K)
Guardianship involves severe deprivation of rights;
alternatives less so
Power of attorney: signer must be competent
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Ways of dealing with incapacity
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Document can say that the principal wants document to remain in
effect after incapacity; this makes the POA durable
Document can go into effect when the person becomes incapacitated;
this is a spring POA; should define how incapacity will be determined
Alternatives to Guardianship (cont’d)
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Living Trust
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Assets legally transferred to trustee
Assets managed on behalf of beneficiaries
Typically used for larger estates
Assessing Capacity to Manage Affairs
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Typically based on informal ratings or
impressions
Direct assessment approaches may be
useful
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Everyday memory questionnaires/scales
(e.g., Rivermead)
Financial Capacity Instrument (Griffith et
al, 2003)
Advanced Directives
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Instruction from a competent individual
regarding actions to be taken in the event of
incompetence
Binding on the guardian
Types
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Living will
Durable power of attorney
Statutes require patients to be provided with
information about such directives
Essentially a “competence to consent to
treatment” decision
Competency to consent to
treatment
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Disclosure of relatively complete
information by a clinician…
…within a context that allows for
voluntary choice…
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…by a patient who possesses relatively
adequate capacity to consent or decline
the recommended treatment
Treatment: Disclosure
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From the point of view of the clinician
From the point of view of the patient
Courts usually sanction limited disclosure (not
at the level that would satisfy a medical
practitioner, but that would contain a recitation
of risks and benefits)
Clinicians must be willing to share authority
Treatment: Competency
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Competency must be evaluated if question is raised
When is the issue raised?
 when treatment is refused
 protect against subsequent tort action in the case
of major medical procedure
Conceptual aspects of elements of competency:
 expression of preference, understanding,
reasonable decision-making process, reasonable
outcome
Treatment: Voluntariness
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A difficult issue because of the authority-laden
context in which such decisions are made
Competency vs. voluntariness is not easy to
separate: e.g., a person who has a resonable
understanding of situation but makes decision
under duress; is this incompetence?
Competency as interactive construct
Attributions that discourage
competency assessments
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If the patient agrees with treatment
recommendations, capacity must be intact
I am trained to provide treatment
I can’t participate in a patient’s decision to die
I know what is best for the patient
I am better trained than the patient to
understand the implications of his decisions
Balancing Respect for Autonomy With
Protection from Harm
Respect for
Autonomy
Protection
from Harm
Capacity:
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“In general … and certainly in the case of medical treatment,
persons have the right to make decisions that may lead to
harm unless their ability to make autonomous choices is so
limited that we consider them incompetent (or lacking
capacity).”
“Self-determination, when not substantially impaired, trumps
the interest in promotion of well-being and protection from
harm.”
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But WHY would respect for autonomy trump protection from
harm?
Grisso T. & Appelbaum, P.A. (1998). Assessing Competence to Consent to Treatment: A Guide for Physicians and Other Health
Care Professionals. New York: Oxford University Press,, p. l3-l4.
Capacity to consent to treatment is
a legal construct
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“Informed consent" means consent voluntarily given by a person
after a sufficient explanation and disclosure of the subject matter
involved to enable that person to have a general understanding of the
treatment or procedure and the medically acceptable alternatives,
including the substantial risks and hazards inherent in the proposed
treatment or procedures, and to make a knowing health care decision
without coercion or undue influence.”
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Title XLIV, Civil Rights, Chapter 765, Health Care Advance
Directives; 765.101[9] FL. State Statutes.
Capacity to consent to treatment is a
legal construct
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“"Express and informed consent" means consent voluntarily given in writing, by a
competent person, after sufficient explanation and disclosure of the subject matter
involved to enable the person to make a knowing and willful decision without any
element of force, fraud, deceit, duress, or other form of constraint or coercion.”
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Title XXIX, Public Health, Chapter 394, Mental Health; 394.449[9] FL.
State Statutes.
The HCP must provide enough information for the patient to
make a “knowing” decision:
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patient’s diagnosis
proposed treatment and its risks and benefits
alternative treatments and their risks and benefits
the risks and potential benefits (if any) of no treatment
Capacity/Competence
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Understand information relative to the decision
Appreciate significance of information relative to
decision
Ability to reason with relevant information so as
to weigh treatment decisions
Ability to express a choice
Ability to express a choice:
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Among the four components of capacity, ability to express a
choice is more of a threshold ability
 Absence of this ability is sufficient to warrant a finding
of incapacity.
It may be necessary to utilize eye blink, gestures, pointing
(nonverbal communication strategies) or an interpreter
(foreign language, American Sign Language, etc.) in order to
communicate with a particular patient.
Ability to understand:
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Ability to understand is often the most salient ability from a
legal perspective.
Consists of the ability to acquire and be able to repeat back,
in one’s own terms, the nature of the condition,
recommended treatment, and its benefits and risks, within the
time frame necessary for making a decision and expressing a
choice.
May be impaired by thought disorder, delusions, extreme
emotional states, dementia, mental retardation.
Ability to appreciate:
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Inferred from the patient’s acknowledgement that she/he may
indeed have the condition in question - application of the
diagnostic information to oneself.
Inferred from the patient’s acknowledgement that she/he may
likely suffer the consequences of the condition if it is not
treated - application of the prognostic information to
oneself.
Consists of the person’s beliefs about the information.
Impaired via patently false beliefs.
Issues regarding appreciation:
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Disagreement with the HCP’s characterization of the condition and
prognosis is NOT adequate proof of incapacity.
Incapacity may be inferred when NON-acknowledgement results
from:
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substantially irrational, unrealistic beliefs, or distortions of reality, relative to
the beliefs behind the choice
the suspect belief results from impaired cognition or affect
the suspect belief must be relevant to the patient’s treatment decision (the mere
presence of an irrational belief does not prove incapacity)
religious beliefs that are not purely idiosyncratic, that predate the decision, and
have been consistently held do NOT constitute impairment of appreciation
Ability to reason:
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Consists of the ability to manipulate the relevant information
rationally or logically.
The focus is on how information is processed relative to the
person’s values, preferences and beliefs.
Functional reasoning should demonstrate:
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sufficient sustained focus on the problem.
at least some consideration of the available options.
deliberation, during which there is consideration of consequences in
terms of their probability and desirability relative to one’s values and
preferences.
A “bad choice” is NOT proof of impaired reasoning!
Competency to Consent to Treatment
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Questions in Determining Competency
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has full disclosure (information-giving) occurred?
is the individual competent to consent to treatment?
is the consent voluntary?
Applebaum, 2007, NEJM, 357, 1834-1840.
Informed Consent
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Purposes:
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to promote individual autonomy
to encourage rational decision-making
Consequences of Failure to Give IC
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battery or negligence can be charged if treatment
given to a person whose consent is invalid
Research on Informed Consent
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Adherence to “full disclosure” is rare
 patients not typically allowed to determine alternative
treatments
 negative information omitted
Competency difficult to assess because
 difficult to know if gaps in knowledge result from failure to
disclose or incompetency
Doubt raised about whether most treatment decisions are made
voluntarily
 consent usually obtained “pro forma”
 demand effects
Competency to Consent to Research
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Informational duties of researchers
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nature and purposes of research
risks and benefits of participation
alternative available treatments
limits of confidentiality
compensation/treatment for injuries
who to contact with questions
statement that participation is voluntary
statement about withdrawal of participation
Testamentary Capacity
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Test is easy to state, difficult to apply
Essentials of testamentary capacity (the literate
version):
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“It is essential that a testator shall understand the nature
of his act and its effects; the extent of the property of
which he is disposing, and shall be able to comprehend
and appreciate he claims to which he ought to give effect,
and, with a view to the latter object, that no disorder of
mind shall poison his affections, pervert his sense of
right, or his will in disposing of his property, and bring
about a disposal of it which, if his mind had been sound,
would not have been made”.
Testamentary Capacity (cont’d)
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Goddard v. Dupree (1948 Mass Supreme Court):
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Testamentary capacity requires ability on the part of the
testator to understand and carry in mind, in a general way, the
nature and situation of his property and his relations to those
persons who would naturally have some claim to his
remembrance. It requires freedom from delusion which is the
effect of disease or weakness and which might influence the
disposition of his property. And it requires ability at the
time of execution of the alleged will to comprehend the
nature of the act of making a will.
Testamentary Capacity
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Must know a will is being made
Must know nature and extent of property
Must know “natural objects of one’s bounty”
Must know how the will actually distributes
property; assessment of consequences is
important
Testamentary Capacity Issues
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Must have capacity at the time the will is executed.
What if deteriorating?
Burden of proof on person bringing forth the will, but,
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Presumption of capacity
Presumption of continuity
Evidence
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Family observations (not impartial)
Lawyers, hospital witnesses
Medical records
Testamentary Capacity (cont’d)
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Mental illness not enough
Prejudice, even ill founded, is not equivalent to
lack of capacity
Self-determination vs. atypical distribution
Dividing line is “rationality”
Remember: goal is to assist trier of fact
Clinical Evaluation of
Testamentary Capacity
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“Bad decisions” don’t necessarily signal incompetency
Burden on petitioners in case of will contestation
Often, subject of evaluation is deceased, though some
states have antemortem probate statutes
If dead: information will have to be collected from
collaterals and from medical records
If alive: functional evaluation of four testamentary
standards can proceed; recommend videotape
Beware of financial biases
Components of Testamentary
Competency: Evaluation
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Knowledge of making a will: direct questioning, including
evaluation of “undue influence”
Nature/extent of property: correlating inventory with report;
occupational, possessions, intangibles, etc. are targets
Natural objects: ascertain actual values, beliefs, and preferences
of testator; don’t automatically assume that “reasonable person”
standard means “like me”; ask who played major role in life
Manner of disposition: knowledge of likely impact of will;
understanding of general consequences; is this understanding
c/w values, beliefs determined above?
“Patient X had been diagnosed with congestive heart failure, arterosclerotic disease, and kidney
failure. All of these are commonly associated with impairment of brain function. Congestive heart
failure and arterosclerotic heart disease result in progressive anoxic encephalipathy (sic),
destruction of brain cells as a result of poor blood circulation in the brain, resulting in diminished
oxygenation of brain tissue which is vitally dependent on same. Metabolic encephalipathy is the
destruction of brain cells as a result of chemical abnormalities in the body and its fluids. The
nurses’ notes for Mr. X’s final hospitalization reflect recurrent observations of irritability, anger,
confusion, and inattentiveness. On (date), the nurses’ notes reflect urinary incontinence, while
physicians’ notes indicate that Mr. X was too weak to sit up, that his prognosis was grave and
chance for survival small. Within a reasonable degree of psychological certainty, such observations
and notations indicate that the factors referred to above had, by (date) if not earlier, resulted in
substantial impairment, if not destruction, of Mr. X’s judgment, foresight, organizational thinking
capacity, reasonability, and ability to understand the nature and consequences of his actions. This
impairment was present for the last 48 to 72 hours of Mr. X’s life, and within reasonable
psychological certainty, would prevent Mr. X from fully appreciating the extent of his possessions,
their value, location, and disposition.” Then at deposition, he says “He suffered, in his last week to
ten days perhaps, a primary degenerative dementia causing him to be particularly vulnerable and
susceptible to the intrusion of the thoughts of others.”