Consultation-liaison psychiatrists frequently encounter clinical situations
that have legal implications. The most common legal issue that arises in consultation
psychiatry is the question of competence. Practitioners often turn to the
psychiatric consultant for an opinion on whether a patient is competent when a
patient is unable to consent to treatment or refuses a medically indicated
procedure. The consultation request is often framed as a question (e.g., "Is
Mr. Smith competent to refuse surgery?").
This consultation request reflects a common misconception regarding the
issue of competence. Competence is a
legal state, not a medical one. Competence refers to the degree of mental
soundness necessary to make decisions about a specific issue or to carry out a
specific act. All adults are presumed to be competent unless adjudicated
otherwise by a court. Incompetence is
defined by one's functional deficits (e.g., due to mental illness, mental
retardation or other mental condition), which are judged to be sufficiently
great that the person cannot meet the demands of a specific decision-making
situation, weighed in light of its potential consequences (Grisso
et al., 1995). Only a court can make a determination of incompetence.
In contrast, psychiatric consultants can and should opine about a patient's
capacity to make an informed decision or judgment. Capacity is defined as an individual's ability to make an informed
decision. Any licensed physician may make a determination of capacity. Forensic
psychiatrists, however, are especially suited to assess a person's mental
status and its potential for interfering with specific areas of functioning. An
individual who lacks capacity to make an informed decision or give consent may
need to be referred for a competency hearing or need to have a guardian
appointed. The psychiatric consultation results in an opinion regarding whether
such actions are indicated.
Moreover, competence is issue specific. Some physicians who misconstrue
competence to be a global, black or white issue will ask psychiatric
consultants for a broad consultation on whether the
patient is competent or not. The response of the psychiatric consultant should
be, "Competent for what?" The capacity to make a competent, informed decision
on the issue at hand needs to be investigated. Other aspects of the patient's
mental status or diagnosis are not as relevant as their ability
to comprehend and make voluntary, informed decisions regarding the immediate
Features of Patients Referred for
The most common reason for a competency evaluation is a patient's refusal to
accept medical treatment. Frequently, this refusal stems from the patient's poor
understanding of the proposed treatment. Many questions regarding the patient's
competence arise from miscommunication that can be directly addressed and
rectified. As a physician, the psychiatric consultant is in a unique position
to facilitate patient education about the proposed treatment and to improve
communication between the patient and the treatment team.
Components of a Capacity Evaluation:
Components of the capacity evaluation include comprehension, free or
voluntary choice, and reliability. The first component of a capacity evaluation
regards the comprehension of relevant information. Does the patient demonstrate
an understanding of their condition? If the patient does not demonstrate an
understanding of "what is wrong," the consultant should attempt to educate the
patient. Once the patient demonstrates an understanding of their clinical
condition, the consultant should determine the patient's
understanding of the proposed treatment (i.e., "What do the doctors want
To assess capacity, the consultation psychiatrist must have a clear
understanding of the components of informed consent. In order for consent for
medical treatment to be valid, three things are required: 1) The patient must
have knowledge; 2) the patient must be competent; and 3) the consent must be
voluntary. Before capacity can be assessed, the patient should be advised of
the risks and benefits of the proposed treatment and the risks and benefits of
electing to forgo the proposed treatment. Patient understanding of this
information and the reasons for acceptance or refusal of treatment will
determine an opinion regarding capacity. If the patient lacks capacity to give
informed consent to medical treatment, the patient may need to be referred for
legal adjudication of competence.
The second component of a capacity evaluation is the concept of free choice.
The patient's decision to accept or reject treatment must be voluntary. In
assessing the patient's capacity, the consultant should determine whether
choices have been rendered impossible due to unrealistic fears about treatment
or other impairments in mental processes.
The final component of a capacity evaluation is reliability. Reliability
refers to the patient's ability to make a decision and stick to it. Indecisive
or vacillating decision-makers are not reliable. The consultant should
determine if the patient's decision is stable over time.
Exceptions to Informed Consent
Courts recognize the following four exceptions to informed consent: 1)
emergency; 2) incompetence or lack of capacity to make decisions that must be
made without the benefit of the court; 3) waiver; and 4) therapeutic privilege.
The emergency exception refers to the delivery of treatment without consent to
a patient who is unconscious or in imminent danger of serious harm.
Consultation psychiatrists are not likely to be involved in such emergency
Incompetent patients, by definition, cannot give informed consent. In this
case, consent should be obtained from a guardian or substitute decision-maker.
Consultation psychiatrists are frequently involved in these cases.
The third exception to informed consent, waiver, refers to the patient's
right to waive disclosure of information. For example, a patient may tell the
doctor: "Don't tell me what's happening, just do what you think is best."
Patients who waive their right to informed consent are accepting the doctor's
decision to make unilateral medical decisions.
Finally, therapeutic privilege refers to a doctor's decision to withhold
information from a patient because telling the patient would cause
psychological damage or render the patient ineffective in decision making.
Consultant psychiatrists may be asked to determine whether the disclosure of
information would result in psychological damage to the patient or bring about
an irrational decision.
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Kunkel EJ et al. (1998), The Academy of Psychosomatic Medicine practice
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2.Casasanto MD, Simian M, Roman J (1989), A model code of ethics for guardians. Whittier Law Review 2(3):543, 545-549.
3.Garner BA, ed. (1999), Black's Law Dictionary, 7th ed. St. Paul, Minn.:
4.Grisso T, Appelbaum PS, Mulvey EP, Fletcher K (1995), The MacArthur Treatment Competence Study. II: Measures of
abilities related to competence to consent to treatment. Law Hum Behav 19(2):127-148.