Competence and the

Capacity to Make Decisions

EAST AFRICA UNIVERSITY
Dr ABDIRAHMAN A GAANIYE
 Objectives
• Define competence and capacity

• Discuss their ethical and legal significance

• Consider how they apply in hard cases

• Competence is a legal term. Competency
decisions transpire within the judicial system.
• Only a court can determine that a patient is
incompetent.
• All adult patients are considered competent
unless specifically proven otherwise.
• Physicians can determine whether or not a
patient has the capacity to understand his
medical condition.
• The physician makes a determination of the
capacity of a patient to comprehend her
medical problems
• based on whether there is an organic delirium
due to a medical condition such as a sodium
problem, hypoxia, drug intoxication,
meningitis, encephalitis, or a psychiatric
disorder.
• These determinations are based in large part
on a neurological examination testing
memory, comprehension, reasoning, and
judgment.
 Criteria for Competency
 Demonstrates an ability to understand the issues
 Shows an appreciation of how this information
applies to oneself and the effects on their life
 Has an ability to outline their reasoning for their
choices
 Has an ability to communicate their decisions
voluntarily and without coercion
• Any physician can make this determination.
• The physician does not have to be a
psychiatrist.
• A psychiatrist may be useful in rendering
decision making capacity determinations in
cases that are complex or equivocal.
• If the patient obviously does or does not have
the capacity to understand, a psychiatrist is
not needed.
 Capacity vs. Competency
Capacity
 Functional/Clinical Term
 Mental/Cognitive ability to
understand the nature and effects
of decisions

Competency
 Legal Term
 Having sufficient capacity, ability,
or authority to make decisions
 CAPACITY VS. COMPETENCY

Capacity Competency

Decision used for Provision of Decision used for

Protective Services Appointment of Guardian

Often temporary Usually long term

Decision made by DSS or Decision made by Clerk

District Court Judge of Superior Court or Jury
 MINORS
• By definition, a minor is a person under the
age of 15. With some exceptions, minors are
generally not considered competent to make
their own decisions.
• Only a parent or a legal guardian can give
consent for a minor. Neighbors, aunts, uncles,
and grandparents cannot give consent for
treatment of a minor.
• This rule does not cover life-threatening or
serious emergencies.
• Consent is always implied for emergency
treatment.
• A physician should not withhold blood or
surgery in a life-threatening accident just
because the parent is not Present.
• For example, “a 10-year old boy accidentally
runs through a glass window, at school and
lacerates the radial artery.
• His teacher brings him-to the emergency
department.”
• The boy is bleeding and needs both a blood
transfusion and surgery to correct the defect.
What should you do?
• Emergency treatment of a minor does not
need express written consent.
• parental consent is implied.
• saying that you had to ask another person
such as the teacher, the principal, the school
nurse, the babysitter, or the grandparents for
consent before giving emergency treatment
would be the wrong answer
• Seeking a court order is also a wrong choice in
an emergency because it delays the
treatment and because in an emergency it is
implied that the parents would consent if they
were there.
 Partial emancipation
• Although only a parent or guardian can give
consent for procedures and therapies for a
minor there are some exception to this rule in
the areas of prenatal care, contraception,
• Sexually transmitted diseases(S TDs), and
substance abuse.
• The mature minor is generally one above the
age of I5, although this varies by state.
• USMLE will not make hair splitting distinctions
like giving you a 14-year-old the day before
her 15th birth day.
• The case on the exam will be clear
• For example ,” a l6-year-old girl comes to see
you in clinic to discuss contraception. She is
generally healthy but is not accompanied by a
parent.” What should you do?
• in all cases like this involving prenatal care,
STDs, contraception, HIV and substance abuse
the answer should be to treat the patient.
• Saying that you must notify the parents, get a
court order seek legal counsel, refuse therapy,
or to go to the ethics committee are all incor_
rect answers.
• These interventions are not necessary.
• Society has interest in preventing unwanted
pregnancy so it is considered less harmful to
treat. Without parental notification.
• Than it is to take the risk that a teenager will
get pregnant and need an abortion later.
 Abortion in a Minor
• The rules on parental notification for abortion
are less clear because there is no national
standard. some states require parental
notification and some don’t.
• For example , a 16-year-old girl comes to see
you in her first trimester of pregnancy.
• she is seeking an abortion. What should you
do?
• In this case set, there is no clear answer about
whether or not the physicians should notify
the parents.
• There is no clear national standard and it
depends upon the state you are in.
• The most likely right answer will indicate the
need to encourage the child to notify the
parents herself which would be the best.

• So the correct answer choice will say

something like encourage discussion", counsel
her to tell the parents herself ,“ or "suggest
family meeting.
• On the ethics questions for USMLE, if there is
a choice that says to discuss , confer,meet,or
have voluntary notification, this will generally
be the right thing to do first.
 Emancipated minor
• A small number of minors, particularly at older
ages such as l6 or 17, may be considered
emancipated or freed of the need to have
parental consent for any medical care.
• The criteria are that the minor is married, self-
supporting and living independently, in the
military, or the parent of a child that they
themselves support.
• The criteria for being an emancipated minor
relate to being no longer dependent on one's
parents for support.
• In other words, if the minor does not live with
his parents, has a job, and is self-supporting
financially, then the minor no longer is
dependent upon parental consent for his
actions.
• An emancipated minor is free to make health
care decisions in all areas, not only, just STDs.
• prenatal care,contraception, or substance
abuse.
• Serious medical conditions or procedures such
as organ donation, surgery or abortion may
require a specific court order to allow the legal
standing of emancipation to be fully valid.
• Only answer ‘court order’ judicial intervention
‘court trial’ or seek legal resolution if the case
represents disagreement or a lack of
consensus in the stem.
Limitations on Parental right of Refusal for
Minors
• Although a competent adult can refuse any
medical care she wishes, the same right does
not automatically extend for parents
concerning their children.

• parents cannot refuse lifesaving treatment for

their child based on religious belief
• The state has an interest in the welfare of the
child that exceeds the parental right to deny
therapy for the child if the child might die.
• For example, ‘a child is in a motor vehicle
acciclenta and sustain head trauma requiring
surgery to drain a hematoma that, if left
untreated,will be fatal.
• As part of the surgery the child will need a
blood transfusion.’
• The parents are Jehovah's Witnesses and
refuse to give consent for the transfusion.
• the parents stated religious beliefs are that
accepting blood for their child would be a fate
worse than death. what should you do?
• If the child needs blood to save his life you
must give the blood even over the objection
of the parents.
• It may seem contradictory to seek parental
consent for a procedure that you will perform
even if they refuse, but in this case, you
should attempt to obtain their permission
nonetheless.
• Withholding lifesaving therapy for a child is
considered comparable to child abuse.
• The parents' right to practice their religion in
terms of health care would cover their ability
to refuse transfusion for themselves but not
for their child.
• This ethical concept has only expanded
parents cannot refuse therapy for children
even if they are severely brain damaged
damaged or otherwise developmentally
disabled
• Society does not distinguish between
individuals based on their relative worth.
• In other words parents cannot refuse tracheo-
esophageal fistula repair on a patient with
Down syndrome just because the mental
capacity and functional ability of the child will
be much less than that of a child.
• Without this disease From this point of view,
treatment against parents ‘wishes in a life-
threatening situations equally valid for both a
future genius and a child with cerebral palsy
who will not achieve mental age above 2.
• One of the only times parents are allowed to
refuse care for their child is when the child is
so ill or deformed that death is inevitable.
• This is not a true refusal on the part of the
parent.
• This is really just saying that parents can
refuse only the futile care that the doctor
should not be giving anyway.
 PSYCHIATRIC PATIENTS
• A patient's psychiatric history is intrinsic to the
concept of competence and to the patient's
capacity to understand her medical problems.
• A patient with the clear capacity to
understand or one who clearly does not have
capacity does not need a psychiatric
evaluation.
• a psychiatric evaluation can be useful to help
make a determination of capacity in equivocal
or questionable cases.

• All suicidal patients are considered to lack

capacity to understand because active suicidal
ideation is deemed(considered) to be a sign of
impaired judgement
• In addition, the level of competence
Necessary to make financial decisions is
different from that necessary for an informed
refusal in other words, a patient may have a
history of bipolar disorder making it
impossible for him to manage his financial
decisions.
• However the same person might still be
considered to have capacity to refuse
treatment.
• There is very limited demand placed on
patients to establish capacity to refuse
treatment.
CAPACITY TO REFUSE PROCEDURES IN
AN OTHERWISE MENTAIIY
DISABLED PATIENT

• A patient with mental illness or mental

retardation that might be considered
incompetent for other areas of life may still
retain the right to refuse medical procedures.
• The criteria to determine competence in areas
of finance are at a higher standard than those
for refusing medical procedures.
• Your patient might have schizophrenia, mental
retardation, or autism to the point of needing
to live in a group home.
• but that does not mean they are incapable of
understanding medical procedures.
• This means that an adult with a mental age of
8 or 10 may still be allowed to refuse medical
procedures.
• Our society is reluctant to strap a patient to
his bed and perform procedures that would be
painful or uncomfortable for the patient
without his consent.
• For instance, certain court cases in the past have
allowed a patient with mental illness to refuse
diagnostic procedures even though two out of
three of the reasons for the refusal were
delusional.
• This is an affirmation of how deep the principle of
autonomy goes in the management of patients.
• In addition, it shows that beneficence-trying to
do the right thing for patients.
• is considered less important than autonomy.
• Autonomy is given more weight in decision
making than beneficience. Autonomy has
priority.
• A person may meet the legal standard of
competence to refuse or accept medical care
even if she is not considered competent in
other areas of life, such as financial matters.
WAAD MAHADSANTIHIIN