Beyond Cognition: The Role of Disordered Affective States in Impairing
Competence to Consent to Treatment
Harold J. Bursztajn, MD; Hemdon P. Harding, Jr., MD; Thomas
G. Gutheil, MD; and Archie Brodsky, BA
Most of the criteria for competence in
current use emphasize cognitive rather than affective dimensions.
Our clinical experience indicates that affective disorders may impair
competence in a detectable and identifiable way. In particular, patients
with major affective disorders can retain the cognitive capacity
to understand the risks and benefits of a medication, yet fail to
appreciate its benefits. A case study of a pathologic grief reaction
is introduced to Illustrate how cognitive and affective impairments
may coexist and require separate remedial strategies for restoration.
Further empirical work on the role of affective disorder in impairing
competence is warranted and planned.
From the Program in Psychiatry and the Law, Mass. Mental Health Center,
where Dr. Harding was chief resident in legal psychiatry, Dr. Bursztajn
is co-director, Dr. Gutheil is co-director, and Mr. Brodsky is senior
research associate. Dr. Harding was also clinical fellow, Dr. Gutheil
is associate professor, and Dr. Bursztajn is associate clinical professor,
Harvard Medical School. Reprint requests to Dr. Bursztajn at 96 Larchwood
Dr., Cambridge, MA 02138. Discussion of some portions of this research
appeared in Gutheil TG, Bursztajn HJ, Brodsky A, Alexander V (Eds.):
Decision Making in Psychiatry and the Law, Baltimore, Williams and Wilkins,
1991.
While the legal finding of competency is a determination made only by
a judge, psychiatric formulations and input play a central role in contributing
to this determination. What has traditionally made the assessment of
competency a complex and difficult undertaking is the fact that—with
few exceptions such as competence to stand trial and testamentary capacity—precise
standards have never been articulated for just what constitutes competency
in relation to particular acts, tasks, and choices. More specifically,
while the criteria for competency to stand trial are relatively explicit,
[1] the precise aspects of competency involved in consenting
to various forms of medical treatment are undefined, ambiguous, or inconsistent
among authorities and practitioners. Furthermore, in the clinical practice
of an individual practitioner, these precise aspects may well vary from
case to case depending on such context variables as degree of risk of
options and amount of time available to assess competency. [2]
More importantly, the extent models have tended to emphasize cognitive
processes as the sole elements of competence. The role of affect and
of affective disorders in impairing competence has been scanted.
This relative neglect of affect, affective state, and the presence of
affective capacity or disorder as factors influencing the competence
of a decision maker to consent to treatment can perhaps be best understood
as a remnant of an antiquated mechanistic model (or paradigm) of rationality
and the image of the rational decision maker. [3] Such
a paradigm considers the ideal decision maker to be one who decides in
the absence of affect and affective factors. The presence of affect is
treated as a force that hopelessly contaminates competence for rational
decision making.
The view we here illustrate is that decision makers under conditions
of uncertainty are inevitably bound to engage in an affect-laden decision-making
process. [4] In fact, free-ranging access to one's own
affective states is a necessary prelude to a decision-making process
that involves the evaluation of risks and benefits of treatment outcomes.
This probabilistic paradigm takes, as its measure of the rational decision
maker, the latter's ability to access, reflect upon, integrate, and communicate
the variety of affective states aroused in assessing the relative value
of particular treatment outcomes under conditions of uncertainty. An
implication of the foregoing is that—while the presence of affective
disorder may, under certain circumstances, impair the decision maker's
competence to consent to treatment - the mere presence of an affective
dimension is expectable and, perhaps, desirable.
It is thus our thesis that affective states may influence (and affective
disorders may impair) competence in a detectable and identifiable way,
primarily influencing the meaning and weight given to treatment risks
and benefits, such that the patient may be unable to appreciate the "benefits" side
of the equation, or may become unduly concerned about risks.
Some Models of Competence Assessment
A number of authorities [3,5] are in
relative agreement that the presence of particular capacities constitutes
reasonable competence to consent to treatment. These include several
abilities: to assimilate information; to weigh risks and benefits of
the proposed treatment plan; to consider the risks and benefits of alternative
treatments; and, finally, to weigh the risks and benefits of no treatment
at all. What is noteworthy in these determinations is that they involve
dynamic processes of weighing, assimilating, and considering, as well
as substantive contents (that is, the actual risks and benefits).
Extending these themes somewhat further, Roth and colleagues [6]
have discussed the dilemma of denial in relation to competence and treatment
refusal. They describe the case of a paranoid woman who insisted that
she was not ill and therefore required no treatment As is common in paranoid
conditions, her cognitive functioning remained intact in many areas (compare ref.
7)). The authors note:
...to evaluate [this patient] as having the capacity to make
treatment decisions can be said to give undue weight to a single area
of mental functioning, that of cognitive understanding. Her intellectual
understanding of the risks, benefits, and alternatives to the proposed
treatment, however thorough, cannot have meant the same thing to her
as it would have to a person who believed that this information was directly
relevant to him or her. Cognitive understanding appears to be an insufficient
mea- sure of the individual's capacity for interpreting his or her situation
(pp. 912-3).
Extending the discussion somewhat, Appelbaum and Roth [8]
have outlined the ways in which a number of diverse psychological factors
can bear upon a person's competency: (1) psychodynamic elements of the
patient's personality, (2) the accuracy of the historical information
conveyed by the patient, (3) the accuracy and completeness of information
given to the patient, (4) the stability of the patient's mental status
over time, and (5) the effect of the setting.7 While affective issues
may be implicit in criteria nos. 1, 4, and 5, the authors make no direct
mention of the possible role of the patient's affect in impairing competence.
An Illustrative Case
The patient, a 72-year-old, retired college professor, hospitalized while
symptomatic with an aortic aneurysm and in severe congestive heart failure,
was seen by a psychiatrist consulting to the attending surgeon regarding
the patient's competence to refuse resection. While denying depression,
the patient's affect was clearly constricted and he admitted to a three
week history of weight loss, fatigue, anhedonia, early morning awakening,
and indecisiveness. The patient was able, in a dead-pan way, to recite
(by referring to his notes) the list of risks and benefits regarding
the proposed operation that had been clearly communicated to him by his
attending physician. Although suffering from a clear short-term memory
impairment and impaired concentration, he was able to compensate by taking
notes when the physician gave him information. He even went so far as
to reproduce a drawing of the resection that had been shown to him by
the surgeon. However, he was adamant that, for him, the operation would
be tantamount to a death sentence. Even if the resection were successful,
he stated that life had no joy for him and that he did not expect this
to change, even with reversal of his congestive failure.
Further exploration revealed that the patient's wife had died, unexpectedly,
15 years ago, following what was considered a relatively risk-free minor
operative procedure. Unresolved grief over her loss colored the patient's
appreciation of risks and benefits aside from any cognitive evaluation.
When the psychiatrist asked to hear more about the wife, he was told
she was an architect who in her personal and professional life exercised
a quick, dead-pan style of wit. The psychiatrist responded by saying, "You
sounded a lot like the way you describe her now when we were talking
before about this operation." This brought a flood of tears from
the previously reserved patient, followed by an acknowledgement of the
deep sense of loss contained in his unacknowledged identification with
her. At a follow-up visit, the patient reported that he had had "my
first full night's sleep in weeks", and was
"feeling more alive, more here." The patient expressed a range
of affects including anger over his illness, fear of surgery, and humor
about the existential situation of being aware of risks and benefits
under conditions of uncertainty in which one is asked to contemplate
the value of one's life and the different varieties of good lives and
death. He proceeded to reverse his refusal and to choose to go ahead
with the operative resection.
Discussion
In the case we have just discussed, the patient himself had found an
effective strategy for resolving impaired cognitive competence: note
taking. However, it required the psychiatric intervention, grief work,
to assess and restore that dimension of competence impaired by affective
disorder. This case also extends Freedman's description [9]
of the ways in which a person may fail to produce "recognizable
reasons" for a particular decision. Freedman cites two predominant
aspects of incompetent reasoning: false premises and non sequitur conclusions.
The latter (non sequiturs) are seen most frequently in cognitive disturbances.
The former (false premises) encompass two forms of incompetence found
in patients with severe affective disorders.
The first is the false premise of fixity more typical of the depressed
state, based on the feeling of hopelessness (i.e., the erroneous prediction
that one's mood will never change). The second aspect of incompetence
is one commonly found in manic patients in our experience: an emotionally
involving, self-convincing preoccupation with the risks of treatment
coupled with denial of the benefits. Thus, affective disturbances in
both mania and depression as well as in other affectively altered states
such as unresolved grief may influence competence.
The model of the reasonably competent patient we propose places an even
greater emphasis on the availability of a full range of affects to the
patient. As noted elsewhere, [4] the assignment of values
to outcomes (i.e., assessing their clinical utility) is context dependent.
The assessment of the clinical utility of an outcome is far more likely
to be a process of reasoning by analogy and association than by propositional
logic. Given this fact, a constriction of affect, or its skewing in the
direction of despair, can lead to an impairment via undervaluing positive
outcomes and a "tunnel-vision"
focus on negative outcomes.
Competence assessment is subject to two types of standard errors: competence
misassessed as incompetence and the reverse. Both types of errors can
lead to the same tragic outcome: diminution of the patient's autonomy.
Whether such autonomy is diminished by inappropriate and inaccurate assessment
as competent or incompetent, the opportunity for treatment designed either
to support existing competence or to restore absent competence is significantly
diminished.
Clearly, a number of factors can impinge on a patient's capacity to weigh
risks and benefits. Soskis [10] discovered that paranoid
schizophrenic patients selectively retained in memory the negative effects
(risks, side effects) of antipsychotic medication, but retained far fewer
of the benefits. While this finding would suggest, as did Roth et
al.'s [6] article noted earlier, that paranoid
conditions, perhaps schizophrenia in particular, might be likely to constitute
the largest population of treatment refusers, a multicenter study [11]
from Massachusetts suggests that it is patients with affective disorders
that appear to dominate the treatment-refusing sector.
To digress briefly, note that these data do not yet permit concluding
that denial is the critical mediating psychological mechanism in those
patients. We have elsewhere [7] suggested that manic
denial is one of several states posing particular difficulty for assessment
of the patient's competence and presentation of the clinical basis for
a court opinion as to incompetence and the need for guardianship.
It has been demonstrated that laypersons have a lower threshold than
medical professionals for demanding the explicit specification (in terms
of both frequency and severity) of side effects of medications; [12]
they are risk-sensitive. We hypothesize that individuals with affective
disorders ranging from unresolved grief reactions to organic affective
syndromes may exceed normal laypersons [12] (and may
resemble paranoid patients) in their preoccupations with the negative
side effects of medications, even while they are less disposed to credit
the therapeutic benefits of the same medications because of their affective
state. This imbalance may lead to decision-making that is itself unbalanced,
i.e., incompetent. While cognitive impairments in affective disorders
have been well described, [13] our case illustrates
affective impairment and a consequent state of affective incompetence
independent of the more easily comprensable cognitive impairments. Our
recommendations regarding competency assessment can be best understood
in keeping with our earlier work regarding the movement of informed consent
from a pro forma to a process model. [14] Once competency
assessment is understood as a dynamic process rather than a mere test,
the role of affect and range of affect in the determination of competency
becomes central. Moreover, the assessment becomes linked to an overall
process designed to enhance the patient's autonomy. [15]
We hope that empirical work will shed light on the important question
of the role of affective disorder in impairing competence. Such information
is crucial for the clinical treatment of affectively disordered patients.
Moreover, where such treatment fails to restore affective competence,
it is essential for clinicians to become familiar with these affective
issues, so that they can be clearly presented to courts involved in competence
assessment. Only thus can patients be spared the negative consequences
of being found falsely competent, their true incompetence unrecognized
and untreated.
Acknowledgments
The authors acknowledge their indebtedness to
Professors Benjamin Freedman and Patricia M. L. Illingworth in expanding
the scope of this work, to Ms. Victoria Alexander for editorial comments,
and to Mr. Raymond Meinert for assistance in preparation of this manuscript.
References
-
Dusky V. U.S., 362 US 402 (1960) (per curiam)
-
Roth LH, Meisel A, Lidz CW: Tests of competency
to consent to treatment. Am J Psychiatry 134:279-84, 1977
-
Bursztajn HJ, Feinbloom RI, Hamm RM, Brodsky
A: Medical Choices, Medical Chances: How Patients,
Families and Physicians Can Cope with Uncertainty. New York,
Routledge, 1990
-
Bursztajn HJ, Hamm RM: The
clinical utility of utility assessment. Med Decision Making 2:162-5,
1982
-
Appelbaum PS, Gutheil TG: Clinical Handbook
of Psychiatry and the Law (ed 2). Baltimore, Williams and Wilkins,
1991
-
Roth LH, Appelbaum PS, Sally R, et al.:
The dilemma of denial in the assessment of competency to refuse treatment.
Am J Psychiatry 139:910-3, 1982
-
Gutheil TG, Bursztajn H: Clinicians'
guidelines for assessing and presenting subtle forms of patient incompetence
in legal settings. Am J Psychiatry 143:1020-3, 1987
-
Appelbaum PS, Roth LH: Clinical issues in
the assessment of competency. Am J Psychiatry 138:1462-7, 1981
-
Freedman B: Competence, marginal and otherwise:
concepts and ethics. Int'l J Law Psychiatry 4:53-72, 1981
-
Soskis DA: Schizophrenic and medical patients
as informed drug consumers. Arch Gen Psychiatry 35:645-7, 1987
-
Hoge SK, Appelbaum PS, Lawlor T, et
al: A prospective multicenter study of patients' refusal of
anti-psychotic medication. Arch Gen Psychiatry 47:949-56, 1990
-
Keown C, Slovic P, Lichtenstein S: Attitudes
of physicians, pharmacists, and laypersons toward seriousness and
need for disclosure of prescription drug side effects. Eugene, OR,
Decision Research Report 81-6
-
Beck AT: Depression: Causes and Treatment.
Philadelphia, University of Pennsylvania Press, 1970
-
Bursztajn HJ, Gutheil TG, Cummings B: Legal
Issues in Inpatient Psychiatry: Diagnosis and Treatment (ed 3). Edited
by Sed- erer L. Baltimore, Williams and Wilkins, 1991
-
Deaton RJS, Colenda C, Bursztajn HJ: Medico-legal
issues in consultation-liaison psychiatry, in Principles of Medical
Psychiatry. Edited by Fogel BS, Stoudmire A. New York, Grune Stratton,
in press, 1992