Clinicians' Guidelines for Assessing and Presenting Subtle Forms of Patient
Incompetence in Legal Settings
Thomas G. Gutheil, M.D., and Harold Bursztajn, M.D.
(Am J Psychiatry 143:1020-1023, 1986)
Even for nonforensic clinicians, the assessment of the patient's competence
has grown in importance, particularly regarding the issues of informed
consent and right to refuse treatment. However, the incompetence of patients
with paranoid states, depression, mania, and anorexia nervosa may be
so subtle that both assessors and the court are deceived, incompetence
is not recognized, and treatment is stalemated. The authors provide guidelines
designed to equip the clinician to assess—and to present in an
effective manner in court—the clinical findings relevant to incompetence,
to the benefit of both the patient's rights and treatment.
Although the concept of competence is generally held by clinicians to
be primarily a legal (if not legalistic) consideration, the importance
of assessing competence has been increasingly thrust upon the awareness
of practitioners in psychiatry and other areas of medicine as well.
Competence possesses far-ranging and immediate relevance in two areas:
the general requirement of patient competence for giving informed consent
to any medical or surgical procedure [1] and, more specifically,
competence as a factor in the right to refuse treatment [2].
Both of these determinations, with their competence component, have become—regrettably,
largely through liability litigation—important concepts for every
clinician to grasp. In the ordinary procedure (for trial, guardianship,
or other purpose), the clinician brings to court an opinion as to the
patient's competence, based on clinical facts; the judge, as fact finder,
weighs this opinion and other evidence to render the definitive ruling
that actually determines the patient's competence or incompetence in
law.
Grossly incompetent patients pose little assessment difficulty for psychiatrist
or judge. In forensic consultative practice, however, we see many instances
in which a patient's incompetence to make treatment decisions is subtle,
so that it is missed either by the clinician or—at a later stage
of the process—by the court. The inexperienced assessor or judge
is most often taken in, in our experience, when a patient demonstrates
a capacity to articulate coherent sentences containing plausibly valid
facts, even though there is severe impairment, through illness, of his
or her underlying decision-making capacity. The assessor or judge may
then mistake the patient's condition for a competent one and fail to
detect the true incompetence.
On the legal side, such deleterious miscarriage of the competency determination
apparently evolves from the fact that—in part as a result of traditions
of case law and wordings of statutes—competence is commonly conceptualized
as an entirely cognitive capacity by attorneys, guardians ad litem (investigators
for the court), or judges. Such cognitive capacity, in their view, may
be reflected by, for instance, coherent speech. That is, although courts
are often sensitive to impairments of cognition as they may impinge on
and impair competence, they are far less attuned to the role of subtle
psychotic states or of those affective disturbances which might have
a similarly competence impairing effect.
From our experience, four conditions pose the greatest and most common
difficulties for clinicians' (or the court's) determination of patients'
subtle incompetence.
The "Glib Paranoid" Patient
Many patients in paranoid states (including paranoid schizophrenia) have
been historically well recognized as having an intact sensorium, despite
more deep-seated and far-ranging disturbances of both reality testing
and perceptions of others' motives. Such patients are able to argue—often
remarkably plausibly and convincingly—about the validity of their
delusional world view. Inexperienced assessors may well be taken in by
the patient's apparent capacity to construct internally consistent logical
systems and—most especially—to speak glibly (i.e., in facile,
syntactically accurate, grammatically correct sentences).
The clarity and persuasiveness with which such patients speak may mislead
the assessor as to the patient's underlying competence and may similarly
distract the assessor from discovering impairment in competence that
may result from a particular delusional system or from a fundamentally
paranoid world view. This assessment is made all the more difficult by
the fact that such patients may not disclose their delusions unless their
symptoms are specifically, even sensitively, sought.
Case 1. A 20-year-old man with paranoid schizophrenia refused
his prescribed medications, articulating clearly the side effects and
undesirable consequences of these drugs. The court-appointed guardian
ad litem who had interviewed the patient was convinced that this college-educated,
articulate, and well-spoken patient was fully competent. The treating
physician, interviewing the patient in front of the guardian ad litem,
directed her inquiries beyond the simple facts of the medication. The
patient in response candidly revealed his elaborate delusions about how
the medication was a secret poison administered at the Mafia's orders
to get him to betray his country.
The Pessimistic, Severely Depressed Patient
Like the patient described in case 1, depressed individuals (when the
depression falls short of inducing stupor) may well retain the ability
to express coherent, logical, and grammatically correct sentences. However,
the power and thoroughgoing pessimism of the patient's depression-based
world view may preclude competent recognition of the positive benefits
or effects of treatment, or even of the idea that treatment could possibly
have any beneficial effects at all. Similarly, out of a depression-based
expectation of punishment, such as the need to suffer a bad outcome,
the patient may become convinced that, despite the low likelihood of
side effects, the population at risk will nevertheless include himself
or herself.
Case 2. A 50-year-old woman with involutional depression refused
ECT on the grounds that "it won't help me,"
even though she had obtained documented positive results in a past depressive
episode from this very treatment. Her attorney (representing her in guardianship
proceedings involving this proposed treatment) was convinced of her competence
because her speech, although slowed, was clear and coherent and her pessimism
appeared to him a valid reason to refuse. At the hearing the expert psychiatric
witness described inherent pessimism as a feature of the depressive state
and demonstrated this with interview material on a host of other topics,
in all of which the patient "saw doom" as the result. The judge,
initially resistant, was eventually convinced, and the patient, treated,
recovered.
To grasp the way in which depression can impair competence by its effect
on ostensibly cognitive factors, consider the following psychotically
depressed patient.
Case 3. This 50-year-old man appeared able to grasp cognitively
the concept of a 90% success rate for proposed ECT and able to recite
back the stated side effects, thereby ostensibly demonstrating his competence
to comprehend facts. Due to his depressed state, however, he arrived
at illness-distorted conclusions regarding these facts. He assumed that
he was doomed to be in the 10% failure group—a view reflecting
his affectively induced pessimism—and he expected that the side
effects were absolutely certain to occur in him because that was just
what he deserved—a view reflecting the guilty feelings so common
in depression. Such reasoning leading to such conclusions would suggest
that this patient did not demonstrate competence to weigh risks and benefits,
since his affective state altered his ability to assimilate operationally
and realistically the probabilities involved in the decision.
The Denying Manic or Hypomanic Patient
Patients in the manic state, through a combination of manic denial and
inability during the manic phase to acknowledge need or difficulty, may
utterly deny or refute the possibility of benefit from treatment. Occasionally
this is accompanied by an increased awareness of treatment risks. This
situation resembles that described by Soskis [3], who
noted that patients with paranoid schizophrenia retained in memory the
side effects of their antipsychotic medication but forgot the main, beneficial
effects.
Case 4. A manic patient, in several past manic episodes, had
responded rapidly and well to lithium. He had once even thanked his doctor
for obtaining guardianship so that he could be given this medicine. In
his latest hospitalization for an extremely severe manic episode, the
patient now refused lithium on the grounds that lithium was for mania
and he was not manic, that there was nothing wrong with him, that lithium
could not possibly help him, that the side effects (which he could rattle
off very explicitly) were prohibitive, and that lithium had never been
helpful. These views, when presented together with the contradictory
history, eventually persuaded the court, which finally recognized them
as indicators of incompetence. Guardianship was obtained, and the patient
made a rapid, successful recovery.
The Patient With Anorexia Nervosa
Weight abnormalities aside, patients with anorexia nervosa often express
no apparent delusions or other familiar psychotic symptoms that would
lead assessors or courts to recognize incompetence. Unfortunately, the
following scenario is not uncommon.
Case 5. A skeletally thin 15-year-old girl with classic anorexia
nervosa was brought to court for guardianship to allow routine forced
feedings. The patient gave clear answers about enjoying exercise and
not being hungry. She downplayed in the courtroom her earlier descriptions
of herself as
"fat and bulging" and of single bites of food as "swelling
up inside her as if she would burst. "She seemed in general quite
"lucid." The inexperienced judge, having heard about the importance
of electrolyte balance, asked about these values. On being told that
the electrolytes were at present normal, he ruled that forced feeding
was thus not justified because it was
"not an emergency," and the patient seemed competent. He ruled
that the clinicians should return when the electrolyte values began to
become abnormal.
Several crucial points must be made here. First, as a purely technical
point, some courts are swayed by the clinician's presentation of the
fact that patients who have lost a certain percentage of body weight
are at great risk; this may allow the court to grasp the emergency nature
of the situation. Second, since the competence of patients with classical
anorexia is inherently suspect in the narrow area of self-nutrition (that
is the essence and defining feature of the disease), clinicians must
carefully document and forthrightly present the body image distortions
such as those described, together with their impact on impairing decisions
about eating. Third, if a judge responds as did the one in case 5, the
clinician cannot ethically let it rest there because this unconscionable
situation allows the judge to place the patient at risk for death for
the sake of documenting laboratory values when there is no assurance
that a sudden unpredicted arrhythmia will not kill the patient before
the chemistries clearly change. Thus, if involuntary feeding is clinically
necessary (an individualized judgment call), the clinician must pursue
the competence determination by returning to ‘court on a day when a different
judge is sitting, changing lawyers to a more experienced or aggressive
one, bringing in senior experts as witnesses, or even appealing the case
if necessary.
STRATEGIES FOR THE CLINICIAN
The courts cannot be faulted for misperceiving subtle incompetence that
often eludes the clinician. The clinician, however, has a twofold affirmative
burden: performing the requisite assessment and then presenting the relevant
data in such a way as to be clear to the court. Given the foregoing considerations,
how can the clinician present valid evidence of incompetence to the court
in these ambiguous clinical situations? Although the beginnings of the
answer to this question may be inferred from the case examples provided,
we here outline a systematic approach to this issue.
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Intervene clinically first. The court should always be the last resort
in treatment disagreements of the sort described here. Only after
failed efforts to identify and resolve the problems leading to
treatment refusal should the legal approach be invoked; the clinical
approach has been detailed elsewhere [4].
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Anticipate through documentation. As elsewhere articulated [5],
one function of documentation may be its use in anticipation of future
medicolegal eventualities, for example, when a patient presents with
the possibility of impaired competence (based on clinical state,
past history of incompetent refusal, and the like). In such cases,
careful note should be taken of comments and other material capturing
the patient's view of illness, medication, etc., as these data might
bear on competence. Since substituted judgment [6],
a major model of vicarious consent, centers on divining what incompetent
patients would decide if they were competent, any remarks about the
treatment's value or acceptance when the patient is competent (e.g.,
when recovered or when functioning as an outpatient) should also
be recorded and perhaps even flagged in some way for future use.
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Develop sensitivity to competence issues. Treating clinicians often
feel quite resistant to becoming involved with legal matters,
seeing them as intrusive, foreign, adversarial, and obstructive
to clinical work. Competence determinations are becoming so prominent,
however, in areas of liability, informed consent, and the like
that clinicians are well advised to inform and educate themselves
about this vital determination and its subtleties [1, 2].
Recognition of denial, not just as a problem for the treatment
process but as a factor in competence to make decisions about
treatment, is one example of this broadening of scope [7].
-
Be aware of special problem areas and clearly articulate the clinical
determinants. In advancing clinical data supporting incompetence,
clinicians are occasionally paralyzed by the fear that their
observations
"would not stand up in court," are "too subjective,"
or are "too technical for lawyers to grasp," despite the
clinical usefulness and tested validity of these same data. This
view is highly self-defeating. Clinicians should frankly and candidly
describe the clinical data on which they are basing their assessments;
e.g., "The patient's severe depression, as demonstrated by repeated
expressions of a hopeless attitude and suicidal rumination, makes
him incapable of weighing benefits, since he cannot believe he will
get better from any treatment."
-
Avoid extreme or global positions. Massive organic or functional
illness may produce incompetence so widespread as to be global;
the subtle issues addressed here, however, often spare some areas
of functional capacity. The clinician in court should concede
as valid any islands of competent functioning that exist; this
is more accurate and more convincing.
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Enlist family and staff. The clinician need not give all the testimony
alone. When appropriate, family members and treatment staff may
supply information of great value and relevance to assessing
the competence of an individual's decision making. These observers
can provide reports of the patient's behavior and judgment in
circumstances outside the formal examination. The family must
be educated as to the complex issues involved [8].
-
Educate the hospital attorney. The attorney who is charged with presenting
the case is usually the hospital attorney or "house counsel" [2].
As a rule, it is unwise for physicians in individual practice
or in hospitals that do not have such personnel to go to court
alone unless they have had extensive experience in this area;
a good attorney is probably essential. Even the best attorney,
however, may not have had particular experience in this specific
area of competence/ guardianship; or, even if experienced, the
attorney may have difficulty with those very subtleties described
here. In the interests of good patient care, the clinician must
take responsibility for taking the time to go over the clinical
picture with the attorney to permit the latter to make an accurate
and effective presentation in court.
-
Obtain consultation. A second opinion may be extremely useful to
the decision making in subtle cases. Both clinical and forensic
consultants may be valuable, especially if drawn from independent
sources outside the realm of clinical responsibility.
-
Consider a direct judicial interview. At times a personal interview
of the patient by the judge may be worth suggesting. This experience
may give the judge the best feeling for impenetrable denial,
for example. The clinician should exercise clinical judgment
to decide whether this maneuver should be recommended in a given
instance.
CONCLUSIONS
We have suggested approaches to documentation and presentation designed
to address the problem of the patient whose competence is impaired in
subtle ways in the course of assessing the patient and presenting clinical
data clearly to the court. Clinicians need to develop skills in assessing
and presenting competence related data, since competence assessment is
acquiring a growing importance in areas of clinical interface with the
law.
REFERENCES
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Appelbaum PS, Roth LH: Clinical issues in
the assessment of competency. Am J Psychiatry 138:1462-1467, 1981
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Gutheil TG, Appelbaum PS: Clinical Handbook
of Psychiatry and the Law. New York, McGraw-Hill, 1982
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Soskis DA: Schizophrenic and medical inpatients
as informed drug consumers. Arch Gen Psychiatry 35:645-647, 1978
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Appelbaum PS, Gutheil TG: Clinical aspects
of treatment refusal. Compr Psychiatry 23:560-566, 1982
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Gutheil TG: Paranoia and progress notes: a
guide to forensically informed psychiatric record keeping. Hosp Community
Psychiatry 31:479-482, 1980
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Gutheil TG, Appelbaum PS: Substituted judgment:
best interests in disguise? Hastings Cent Rep 13(3):8-1 1, 1983
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Roth LH, Appelbaum PS, Sallee R, et al: The
dilemma of denial in the assessment of competency to refuse treatment.
Am J Psychiatry 139:910-913, 1982
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Isenberg EF, Gutheil TG: Family process and
legal guardianship for the psychiatric patient: a clinical study.
Bull Am Acad Psychiatry Law 9:40-51, 1981