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 ones understanding
  of options and their pros and cons

5
Ideal Notion of Capacity

• Objective
• Based only on how a persons 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 ones own values and not Daxs to decide what
  is harm and benefit
• Attach undue weight to any flaws or
  inconsistencies in Daxs 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
Gawandes 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?