Competence and Informed Consent

Could a competent, adult patient make the wrong decision?  This is not an uncommon issue encountered in the hospital setting. First of all, there is a need to clarify what we mean by a wrong decision. Decisions have to be made at certain points in the course of managing a patient’s condition. Quite often the medical staff has at its disposal several possibilities. So the competent patient is presented with the various options and asked to choose which among them he or she would prefer. The common understanding of the phrase “a patient making the wrong decision” is when the option chosen by the patient is not the one the medical personnel would have picked themselves. Taken to the extreme, a competent, adult patient refusing treatment or any medical intervention whatsoever would very well be interpreted as a wrong decision. This brings us to the question posed at the beginning of this essay. First, I will define competence. Second, I will discuss its significance in relation to obtaining an informed consent. And third, I will address the question above.

The simplest definition of competence is “the ability to perform a task.”[1] From this definition it is important to note that an individual’s competence is directly correlated with the specific task at hand. And in the medical setting this usually pertains to a patient’s competence to make decisions regarding his or her treatment. It is necessary to point out that strictly speaking, it is the court system that evaluates competence/incompetence while the health care professionals determine capacity/incapacity for decision-making. However, these two terms end up being used interchangeably since “this distinction breaks down in practice.”[2]

The determination of an adult patient’s competence is essential in the process of obtaining an informed consent because decisions made by patients who have been declared incompetent are considered invalid while those made by competent individuals would be acceptable. The concept of informed consent relates to two important aspects. The first is that it meets the requirement of getting consent from patients prior to any medical procedure be it diagnostic, therapeutic, or research. And secondly and more relevant to this discussion is that an informed consent represents a person’s “autonomous authorization of a medical intervention or of participation in research.”[3] Clearly competence and the bioethical principle of autonomy are linked inseparably. Competence is a necessary requirement for a person to exercise his or her autonomy.

What then are the criteria that need to be met in order for an adult patient to be declared competent?

(1) The patient should be oriented to time, place, and person. It is possible that a patient could be oriented at certain times and disoriented at other times. Thus it is necessary to continuously track the waxing and waning of the patient on the chart since this could be a crucial element if ever something wrong happens and the case ends up in court.

(2) The patient should understand relevant information. Does the patient understand the basics of the procedure that is being suggested? We have to acknowledge the fact that an average patient would be hard pressed to grasp the medical and technical details of the procedure especially when the medical staff tends to use highly scientific terms when talking with the patient. But a general understanding of the procedure should be acceptable.

(3) The risks and benefits of the various options should be clear to the patient.

(4) The consequences of all options – including the refusal of any treatment – should be clearly understood by the patient as well.

(5) The patient should be able to clearly and voluntarily express (verbally or otherwise) his or her preference. Any sign of coercion or involuntariness would be a red flag.

An adult patient’s competence then enables him or her to give a valid informed consent. As an autonomous individual and having been presented with the various options and their respective risks and benefits, the competent patient is then requested to make a choice. It is the obligation of the medical staff to respect the patient’s autonomy by respecting whatever decision he or she makes.

Now we are back to the question: Could a competent, adult patient make a wrong decision? It is a fact that sometimes medical personnel get so frustrated when a patient makes a choice that is not to their liking. Some have resorted to requesting a psychiatric consult. If they truly have some sound basis for doubting the competence of the patient and just want a confirmation from a psychiatrist, then this seems to be acceptable. They should be reminded that they could also ask their colleagues for a second opinion on this matter. However, if the motive behind the psychiatric consult is to find a way to declare the patient incompetent so they could then convince the relatives, or whoever the surrogate decision-maker would be, to choose their preferred option then this action is not only unacceptable but smacks of paternalism. And in so doing, the patient’s autonomy is not being upheld. If the medical personnel could not in good conscience carry out the choice of the patient, they still have another option – that of passing on the care of the patient to another health care professional. A physician can never abandon the patient so he or she is still responsible for the patient’s care until another physician has accepted this transfer or the patient has decided to leave AMA or against medical advice.

Being human means being imperfect. We make mistakes every now and then. So long as an adult patient has been declared competent then she is merely exercising her autonomy every time she makes an informed decision.

[1] Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics, Sixth edition (New York: Oxford University Press, 2009) 112.

[2] Beauchamp and Childress 111.

[3] Beauchamp and Childress 119.

Hippocratic Oath & Autonomy

John is a healthy 45-year-old executive who has an appointment with his family doctor for a routine check-up. He read in the newspaper about a new expensive X-Ray test to detect heart disease called CT angiography. John was not concerned that the test was extremely expensive because he thought his insurance would cover it. He told his doctor he wanted to have the test done. The doctor refused his request. He explained that there is no clinical evidence that the test is of value to patients, like John, who have no symptoms or risk factors of heart disease. In addition, a CT angiogram would expose him to unnecessary radiation. John accepted his doctor’s argument, but he still wanted the test to put his mind at ease. Don’t physicians have a moral obligation to respect patient preferences? Isn’t that what the Hippocratic Oath is all about?

The 2500-year-old Hippocratic Oath has stood the test of time. It is still the most popular pledge made by medical students at the time of their graduation. In part, it states, “I will use treatment to help the sick according to my ability and judgment, but I will never use it to injure or wrong them”. The oath obliges the physician, based on his ability and judgment, to benefit the patient. This is the principle of beneficence. The Oath also places on the physician the obligation not to harm the patient (“primum no nocere”). This is the principle of non-maleficence. In this case, the physician exercises the principle of beneficence by refusing to order a test, which, in his judgment, is not needed. In addition, he exercises the principle of non-malfeasance because, in his judgment, the test may be harmful to the patient. It would expose him to unnecessary radiation.

Notice that the Hippocratic Oath is subjective. It is based strictly on the physician’s judgment even if his colleagues do not agree. Also, notice that it is based on the physician’s judgment, not the patient’s. The Oath implies that the physician has the experience and expertise to make decisions on behalf of the patient even if his judgment is in conflict with the patient’s wishes, as it is in this case. Thus, the Hippocratic Oath does not support John’s argument that the physician has a moral obligation to order a CT angiogram.

Serious challenges to the Hippocratic Oath began in the 1970s. First, one may challenge the way benefits to the patient are assessed. If CT angiograms were considered the standard of care for all patients regardless of symptoms or risk factors, the physician would be hard pressed to refuse the patient’s request for the test. The objective judgment of the profession would trump the subjective judgment of one physician. However, that is not the case here. At this time (July 2008) there is no objective evidence to support the benefit of this test in John’s case.

Another challenge to the Hippocratic Oath came for the American Medical Association. Although its previous codes were essentially Hippocratic, the AMA changed its code in a dramatic and significant way in 1980. The new version is the first to speak of patient rights. “The physician shall respect the rights of patients, of colleagues and of other health professionals, and shall safeguard patients’ confidences within the constraints of the law”. The 1980 AMA code breaks with the Hippocratic tradition, which does not mention anyone’s rights. From this time onward, the principle of respect for patient autonomy has been on the ascendency.

“Whether respect for the autonomy of patients should have priority over professional beneficence directed at those patients is a central problem in biomedical ethics” (Beauchamp & Childress, Principles of Biomedical Ethics, 2009). In this case John expresses his autonomy right by requesting that his doctor order the expensive test if only to put his mind at ease. The doctor, in turn, applies the principle of beneficence by denying the request because in his professional judgment the test is not indicated in John’s case. Moreover, he applies the principle of non-maleficence by refusing to subject his patient to the danger of unnecessary radiation. How can this conflict be resolved?

The answer to this conflict lies in the principle of distributive justice. Health care spending in the United States is spiraling out of control. New technologies are a major driving force for this increase. The principle of distributive justice refers to an appropriate, equitable, and fair distribution of health care resources. It is not appropriate for a doctor to order unnecessary tests that subject patients to danger. It is not equitable for one person to receive expensive diagnostic testing, merely for peace of mind, while 50 million uninsured Americans cannot afford the costs of basic health care. In addition, it is not fair to burden society with unnecessary costs.

Daniel Callahan, an expert on bioethics, argues that solving the current crisis in our health care system – rapidly rising costs and dwindling access – requires replacing the current “ethic of individual rights” with an “ethic of the common good”. In a similar vein Newsweek columnist, Robert J. Samuelson wrote: “We face a choice between a society where people accept modest sacrifices for a common good or a more contentious society where groups selfishly protect their own benefits.”