The capacity to consent to medical treatment
Given its central psycho-legal importance the specific civil capacity to consent to medical treatment offers a natural clinico-legal assessment example. As described in Ghapt§.L11.1, in English common law the capacity to consent to medical treatment is defined as the ability to receive and retain relevant treatment information, to believe it, and to weigh it in the balance so as to make a true choice.(4 ,46) (This definition is relevant, in England and Wales, to psychiatric treatment of informal patients, but is replaced by a status test for legally detained patients (see later).) Such wording does not immediately suggest a particularly high degree of psycho-legal incongruity, as might be expected in a branch of law concerned with welfare. Indeed, the legal concept of capacity is mirrored somewhat in the more clinical notion of 'competence' (see Chapt§L11.1 for a discussion of competence in a legal context). This is helpful to the clinician; indeed, such relative congruence offers another good argument for replacing the status test used in mental health care law with the incapacity test. (21) However, it is crucially important to hold on to the fact that, ultimately, even this apparently clinician friendly definition is still a legal definition. Therefore it is open to legal interpretation and even to subsequent modification, either of which could result in significant psycho-legal incongruity.
There is a rapidly growing literature on the clinical evaluation of this particular legal capacity, led by North America (4Z> but now observed increasingly in Britain.(48) However, crucially, capacity is concerned with 'abilities' and therefore it is not determined by diagnosis but by the detail of any abnormalities in the mental state. Hence the clinician must first define the mental state in an ordinary medical way and then interpret, or translate, any observed abnormalities into the legal question: 'Do they overturn the presumption of capacity?' All the detail of the process of assessing capacity follows from these simple basic principles.
As emphasized in Chapter.11.1, the assessment of capacity is not based upon the test: 'Would a rational person decide as this person has decided?' Although the English Court of Appeal has determined that the objective nature of the decision made (as perceived by a rational outsider) can be evidence relevant to determining incapacity, it is certainly not definitive of it. (46) Rather, it is the thinking process (not its outcome) which is all important and the doctor cannot simply use the patient's decision as the only window into that process. This is sometimes a hard ethical pill for the doctor to swallow, especially if the consequences of accepting the patient's decision are substantially adverse (at least as perceived by the doctor). However, although medical ethical deciders are likely to wish to balance the degree of perceived incapacity against the degree of adverse consequences, this is not an approach which is legally sanctioned. Therefore there is the potential for substantial ethico-legal incongruity.
Investigation of a person's thinking processes should be an activity which is very familiar to the psychiatrist. However, whether he or she should do it at all in this context must depend upon whether the person has a recognized mental disorder, since the only legal or ethical justification for a doctor offering an opinion directed towards capacity is that he or she has some expertise which is both relevant and beyond that which is known by the lay person. Hence, although disorder does not define incapacity, it is a necessary gateway to offering an opinion at all. Proffering an opinion, even if it is based on many years close knowledge of a person, such as 'He is a man who makes very poor judgements', is not a medical opinion but a lay observation which is offered by someone who happens to be a doctor. This is of particular relevance to the nature of the ethical relationship within which the activity takes place.
The investigation must proceed in a highly systematic fashion, based upon awareness of the test to which it is to be directed but not driven by it. Thus there should be an ordinary psychiatric assessment which includes reviewing previous medical records and interviewing other informants, and which culminates in a detailed description of the mental state. This assessment should demonstrate any abnormalities potentially relevant to the person's legal capacity to consent to treatment. Hence, in the process of the assessment there will need to be inclusion of questions directed towards specific areas of required mental functioning which flow directly from the legal definition of capacity. Here, there is obviously room for individual clinician interpretation, both of the patient's abilities viewed clinically and of the legal definition itself. The latter offers the potential for substantial clinician variation and, probably, the crucial distinction is between the test being interpreted 'narrowly' (essentially cognitively) and 'broadly' (including allowing for the effects of affect and even impulse). (21) The 'broad interpretation' could justify a finding of incapacity, for example, either where the person is not making the choice which the 'real them' would make (i.e. it is not a choice of their 'authentic self') or, perhaps strongly related to that, where the decision is substantially the 'product' of the person's disorder. Generally, if particularly the third limb of the test were to be interpreted narrowly and cognitively (even including in terms of abnormalities originating in functional mental disorders), then this would infer quite different findings of (in)capacity than would occur if a broad interpretation allowed affect, or even personality abnormality, to be influential on an 'authentic self or 'product' basis. (21) Where the 'broad interpretation' is adopted, it is of particular importance that, during the assessment, information is gained on the person's usual personality and attitudes(49) since, without this, it is impossible to apply the 'authentic self' test, and even the 'product test' may sometimes present difficulties.
There is a growing literature describing more formal assessment protocols or tools which all aim to increase inter-rater and inter-case reliability. Most notable are the protocols originating from the MacArthur Foundation Project in the United States, which has invested a good deal of energy and research funding in the field. (47) Both research and clinical assessment tools have been developed; perhaps the best known of the latter is the McCAT-T. (47) Such tools essentially attempt both to systematize the questioning of patients and to direct such questioning to the legal questions relevant to legal capacity. Therefore, although they are strictly jurisdiction specific (since they have been developed in the United States), they are almost certainly capable of valid use in other common-law jurisdictions which adopt similar legal tests.
Although there is insufficient space to allow a detailed description of the ways in which particular forms of mental state abnormality may suggest incapacity, a few examples may suffice to illustrate how the translation can be effected. Arising from someone's behaviour, he may be so agitated or overactive that it may be impossible practically to impart the relevant treatment information. Even the person's appearance may suggest, for example, a mood disorder which, on a broad interpretation of incapacity, may be relevant. A person's rate and form of speech may be such as to interfere with communication, as well as reflecting abnormalities of thought process per se. Disordered mood may so colour a person's judgement that he is unable to satisfy the third limb of the test in terms of the way in which he weighs his decisions, even if he can satisfy the other limbs of the test (because, for example, his depression is insufficiently severe to interfere seriously with cognition per se). Lability of mood, arising from frontal-lobe brain damage, may render a patient unable to make consistent decisions to which he can stick. Abnormalities of thought may interfere directly and profoundly with either of the latter two limbs of the test. A delusion that the doctor is all powerful in his or her curative abilities would, almost certainly, remove the capacity to consent to the treatment the doctor is offering (hard though that particular delusion may be for the doctor to accept as infringing capacity!). Delusions conflicting with the imparting of relevant treatment information may also clearly remove capacity by interfering with the patient's ability to believe it (e.g. a delusion that the patient is also a doctor, who has his own view of the various treatment options). Even thought abnormalities falling short of delusions (e.g. extreme preoccupation or obsessional thoughts) could interfere with capacity. However, an 'overvalued idea' may present particular problems of interpretation, particularly if there is an absence of information about how the person's 'authentic self' would think about the issue. Perceptual abnormalities are unlikely to be sufficient on their own to inhibit capacity but, by their content, they may reflect and reinforce the impact of thought and mood abnormalities which are relevant to capacity. Such abnormalities may even be directly relevant in themselves if, for example, they are so severe that they distract the patient from the task at hand. The role of abnormalities of cognition in potentially interfering with capacity is, perhaps, obvious and so requires no specific illustration, since there are clear ways in which disorders of consciousness, attention, concentration, intelligence, orientation, and memory can profoundly (or subtly) affect, particularly, the first of the three limbs of the test. Finally, insight can present particular problems. It can be difficult to make a valid distinction between ordinary 'denial' (e.g. of the fact of serious physical illness) and 'lack of insight'. For example, is a patient who does not accept medical advice because she wishes, in order to feel less distress, to think of her medical condition in a different way from how the doctor does, in a state of (adaptive) 'denial', or formally 'lacking of insight' and therefore incapacitous? The reader is left to ponder personal examples of this field of dilemma. However, what is clear is that lack of insight can be irrelevant to capacity, where it does not bear directly upon part of the legal test. For example, a person may lack insight into his or her illness but still validly refuse treatment because of (rational) concerns about known side-effects.
Finally, it is important to note that incapacity is neither static nor always unamenable to therapeutic intervention. Quite obviously, treatment of a condition which is causing abnormalities which infer incapacity may alter the legal situation. Even with a condition which is untreatable, the way in which the doctor interacts with the patient in imparting treatment information and in 'testing' his capacity may affect whether the person appears to retain his capacity or not. Therefore there is a duty on the doctor to discover what factors can reduce the impact of the patient's disabilities and to do everything possible to enhance their capacity. There is much research evidence which demonstrates that such enhancement is often possible
Clearly, all of the foregoing advice is applicable across all civil capacities, albeit the process is directed at differently defined legal capacities and in different legal contexts.
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