Participation in Competency Assessment and Treatment Decisions:
The Role of a Psychiatrist-Attorney Team
by Thomas G. Gutheil, M.D., Harold Bursztajn, M.D.,
Alan N. Kaplan, J.D. and Archie Brodsky, B.A.
Abstract
The authors suggest that psychiatrists and attorneys can benefit from
a collaborative approach to the issues of competence, treatment refusal
and vicarious decision-making, resulting in improvements in the quality
of care.
Competence to make an informed choice of treatments can be meaningfully
assessed only in the context of the adequacy of the treatments in
question. Moreover, without clinical guidance, the courts may unwittingly
order incompetent patients to submit to less than optimal treatment.
Neither the determination of competence nor the provision of high-quality
care can be accomplished through legal procedures alone. Appropriately
skilled psychiatrists have an essential role in advising attorneys
and the judiciary of the relevant clinical issues. A case study is
used to illustrate one mechanism for achieving constructive collaboration
between the medical and legal professions in this area.
The question of a psychiatric patient's competence to give or withhold
informed consent to treatment, [1] especially psychotropic
medications, has given rise to many court hearings and some serious medico-legal
dilemmas.* While such situations commonly involve
in-patients, the same conditions occasionally occur in an outpatient
case as well.** In many jurisdictions, a judge
makes the final determination of competence after hearing the opinions
tendered by others. In some jurisdictions, a guardian ad litem then must
be appointed for a patient judged to be incompetent. [2]
The guardian ad litem, or "next friend" for an incompetent patient "may
be or may become interested in any property, real or personal, or in
the enforcement of any legal rights." [13] In
protecting the interests of the patient, the courts have assigned the
guardian ad litem any of a number of roles, including legal advocate,
fact finder and investigator for the court with broad and relatively
uncircumscribed powers.
Once selected, the guardian ad litem may, under certain circumstances,
serve a temporary guardian-like role, participating in an informed consent
discussion with the treatment team, particularly the physician. This
dialogue, like all other informed consent discussions, addresses issues
of information, voluntariness and competence. Although competence to
make decisions for the patient is presumed to reside in the vicarious
decisionmaker, this guardian ad litem's interactions with the treating
clinicians involve (implicitly or explicitly) an ongoing re-evaluation
of the patient's competence. The patient's actual guardian, acting on
behalf of the patient, also must consider and weigh the various clinical
possibilities (diagnostic, prognostic and therapeutic) in the face of
the complexity of modern medicine and the uncertainty introduced into
one's life by illness. [14]
Legal training is geared toward a concept of the lawyer-client relationship
in which the client's wishes are primary. Thus, the lawyer who is appointed
guardian ad litem faces a difficult task. Trained to act as an advocate
for the client's expressed interests, the lawyer must represent the interests
of a patient who has been found incompetent to do so on his or her own
behalf.
Any of three models may guide the guardian ad litem in representing the
patient's interests. The best-interests model poses the question, "What
course of action is in the best interests of the patient." The substituted-judgment
model asks, "What course of action would the patient choose, if
he or she were competent to make the decision?" [11,12]
The third model, a hybrid of the others, relies on substituted judgment
within the practical limits of that standard (i.e., in cases where one
can actually determine what the patient would want if he or she were
competent). Beyond those limits, the best interests model applies. Even
with these guideposts, however, the lawyer, acting as guardian ad litem,
is forced to enter an unfamiliar world unprepared. We will argue that
a collaboration between lawyers and psychiatrists to address the dilemmas
of vicarious decision-making will benefit both the quality of care and
due process.
Legal and Clinical Perspectives on Competency Assessment
It has been observed that the legal and medical professions understand
the very notion of competence in characteristically different ways. [3]
While the law focuses on a person's ability to understand information
as an index of rationality, medicine looks more broadly at the person's
functioning (i.e., acting on information) in a social context. The clinician
is primarily concerned with the patient's ability to balance risks and
benefits, which is not necessarily a uniform function. For example, a
patient who is considered clinically competent to make decisions in areas
that are not emotionally charged may become incompetent when faced with
an emotionally charged question (e.g., regarding medications). Moreover,
a person who is bolstered by supportive relationships (including a therapeutic
alliance with the clinician) may be far better able to make such decisions
than one who feels all alone and consequently is overwhelmed by anxiety
about the decision.
The legal tradition places emphasis on protection from harm. The law exists
primarily not to confer benefits but to give recourse to people who have
suffered harm or are in danger of harm. Thus, from the legal perspective,
the interests of the patient center on the choice between acceptance
and refusal of treatment.
From the clinical perspective, of course, the question is not simply whether
or not to treat the patient but also what treatment might or might not
be appropriate for that patient. An incompetent patient's refusal of
treatment does not necessarily guarantee the kind of clinical review
that will give reasonable assurance that the proffered treatment is appropriate
or adequate. Such a review must be undertaken by an independent psychiatrist
with the right combination of clinical and forensic skills. Thus, while
the attorney seeks to protect the patient from losses, the clinician
seeks to maximize the utility of treatment, balancing the risks of side-effects
against those of psychosis, for example, or the costs of medication against
those of prolonged hospitalization. These results need not be mutually
exclusive aims, and a collaboration between attorney and physician can
help reveal the common ground, as the following case illustrates.
A Clinical Demonstration
A 23-year-old man with a diagnosis of paranoid schizophrenia was hospitalized
since the age of 15, when he was admitted by his parents. When the patient
began to refuse medications, the state hospital asked the court to appoint
a guardian ad litem. The attorney appointed to serve in this capacity
concluded that he could not properly address the legal issues in the
case without some grounding in the clinical issues. With the approval
of the court, he sought the advice of a psychiatrist (who was not connected
with the treating institution) in addressing the questions of competence
and treatment. The psychiatrist thus functioned as a consultant to the
guardian ad litem.
In his report, the psychiatrist addressed several points. First, he diagnosed
the patient as having chronic undifferentiated (rather than paranoid)
schizophrenia and evaluated him as incompetent, by reason of mental illness,
to give informed consent to treatment. The patient was psychotic at the
time and was unable to answer why he would or would not want to be hospitalized
or given a particular treatment. The psychiatrist also noted that the
patient's legal status as an adult resident of the hospital was unclear,
since he was admitted as a minor, and there was no record of a change
in his status when he reached maturity. Finally, the report addressed
the patient's treatment plan and concluded that it did not meet community
standards of good care.
The psychiatrist based this last conclusion on three factors. First, there
was no written treatment or rehabilitative plan. Second, the staff had
failed to document their consideration of the risks and benefits of the
antipsychotic medications given to the patient. The staff claimed to
have observed the symptoms of tardive dyskinesia, but had not formally
made or recorded this diagnosis. Through their inaction, they failed
to focus attention on the need to assess whether the benefits of functional
improvement through the use of the medications outweighed this severe
and potentially disabling side-effect.
Third, any attempt that might have been made to optimize the dosage of
neuroleptics and minimize their side-effects was further compromised
by two common errors of clinical judgment. The first was the assumption,
without good evidence, that the patient's symptomatic improvement signified
the effectiveness of neuroleptic treatment. There was no recognition
of the possible multifactorial origins of this change. The other error
was the attribution of the patient's stable condition to his high dose
of medication, without an attempt to determine whether low dosages would
be equally effective. In fact, the consultant's chart review showed that
for several years the patient had functioned at a high behavioral level
on 1/200th of the current dosage. At this stage, empirical adjustment
of the dosage was clearly indicated.
Thus, an independent medical assessment, in conjunction with a review
of the patient's legal status, formed the basis for the guardian ad litem's
recommendations to the court, resulting in a clarification of the patient's
diagnosis and a reformulation of the treatment plan.
The psychiatrist in this case was able to identify both a diagnostic and
a therapeutic error. He was aided in doing so by his clinical and forensic
experience as well as his familiarity with common fallacies of clinical
reasoning. The diagnostic error exemplified, in cognitive psychologists'
terms, the "base rate fallacy." [15] People
tend to overvalue vivid, concrete cues at the expense of valid statistical
information; for example, many people consider a friend's experience
with maintaining a particular kind of car to be far more predictive of
the repair record for that make of car than the information in Consumer
Reports. In the above case, since the patient's schizophrenia
exhibited paranoid features, the staff assumed that he fell into the
category of patients — paranoid schizophrenics — who are responsive to
neuroleptics. However, the clinicians ignored the available statistics
on the relative infrequency of paranoid schizophrenia beginning in childhood
(this patient's illness began at age 8). By considering these statistics,
they would have been able to see that the more likely diagnosis was chronic
undifferentiated schizophrenia. Patients in this diagnostic category
are less responsive to neuroleptic treatment than those with paranoid
schizophrenia.
From the observation that the patient functioned well on massive doses
of neuroleptics, the staff inferred that such doses were necessary, even
though the chart indicated that the patient had previously functioned
well on much lower doses. This therapeutic error exemplifies an "illusory
correlation." [15,17] As experimental
psychologists have demonstrated, people often assume that two variables
co-vary when in fact they do not. Without an ongoing treatment plan,
the staff had no way to determine whether the perceived "improvement" in
response to regressive behavior that followed each dosage increase was
merely the patient's behavior reverting to a baseline mean.
In psychodynamic terms, both fallacious judgments might be understood
as motivated by positive counter-transference — for example, the wish
to help and even cure the patient by imagining him to have a disease
that could, in fact, be treated with medication. [11]
While arising out of good motives — "Do unto others as you would
wish to have others do unto you" — this counter-transference may
have led the staff to treat the patient for a disease he did not have
— a treatable disease — rather than for the one he actually had.
Discussion
The foregoing example, in which a psychiatrist consulted with a court-appointed
attorney serving as guardian ad litem for an incompetent patient, illustrates
the value of a collaboration between psychiatrists and lawyers to address
issues concerning competence, legal rights and the quality of care. Although
the ultimate determination of legal competence resides with the courts,
the involvement of psychiatrists, particularly those with forensic experience
and expertise in clinical reasoning, is valuable in guiding attorneys
and judges through the complexities of clinical pathologies, treatment
plans and therapeutic milieux.
Clinical involvement can take various forms, depending on the jurisdiction,
the guardian ad litem's mandate and the court's preferences. The psychiatrist
might act as an independent clinical consultant either to the attorney-guardian
ad litem, as in our example, or directly to the court. Alternatively,
the court might appoint a psychiatrist as guardian ad litem to perform
a clinical evaluation of the patient and the treatment that has been
recommended. In this case, an attorney might or might not be appointed
as a second guardian ad litem to represent the patient's legal interests.
In the discussion below, we focus on the form of clinical involvement
illustrated by our case example — a collaboration between the attorney
as guardian ad litem and the psychiatrist as consultant to the attorney.
Needless to say, all these approaches depend on the willingness of psychiatrists
to serve as consultants or guardians ad litem for the often modest fees
that the state is willing to pay.
In the case of treatment refusal, a collaboration between the psychiatrist
and the attorney enhances the care of the patient in several ways. An
appropriately trained psychiatrist who is independent of the treating
institution can identify, weigh and balance the multiple and complex
clinical factors that bear on a treatment decision, including the risks,
benefits, side-effects, indications, contraindications and alternative
treatment plans.
A careful clinical examination of treatment decisions is beneficial in
achieving the goal of maximally informed consent. Acting as guardian
ad litem or consultant, the psychiatrist submits a written report to
the court that includes a determination of competence from a clinical
perspective, a review of the proposed treatment plan and recommendations
concerning treatment. The psychiatrist also is available to give testimony
under oath and to answer questions posed by any parties to the case.
Those for whom legal protections are invoked are usually severely ill
patients in state hospitals, as well as patients involuntarily committed
to public or private institutions — individuals who have experienced
a significant loss of liberty. In addition, the courts view involuntary
(court-ordered) treatment with antipsychotic and other drugs as a loss
of "mental liberty." All these circumstances provide fertile
ground for collaboration between attorneys acting as patient advocates
and clinicians acting as expert investigators.
Attorneys seek to minimize short-term infringement of liberty in the form
of imposed medication or other undesired treatment. Clinicians seek to
minimize long-term infringement of liberty in the form of prolonged hospitalization
and constriction of functioning secondary to psychosis. Recognition of
at least some commonality of interests and values underlying this difference
in tactics would enable the two disciplines to collaborate more readily
in counterposing the costs and benefits of short-term versus long-term
hospitalization of the patient.
Of course, the approach that we are suggesting has financial costs of
its own. Several benefits, however, outweigh these costs. A collaboration
between the psychiatrist and the attorney safeguards all the patient's
rights, including the right to refuse treatment, the right to due process
and the right to receive adequate treatment. Inadequate or delayed treatment
and excessively long hospitalization can have high costs, financial and
otherwise. Moreover, it has long been a tenet of the law that civil rights
and due process should have no price tag. Careful deliberation and protection
of rights, both of the individual and of society, take precedence over
expediency. Any consideration of cost-effectiveness in the exercise of
justice must be tempered by these principles.
Given the limitations of many state hospital systems with respect to the
level and quality of care, [19] an independent psychiatrist
may play an important consultative role by bringing serious clinical
omissions and mismanagement to the attention of the courts and, not insignificantly,
hospital treatment personnel. The physician-attorney team can thus function
like an arm of the utilization review process, tending to counteract
institutional inertia in planning.
A collaborative approach, in which attorney and psychiatrist learn to
act as a team in addressing pertinent medico-legal issues, can help promote
better understanding between medical and legal professionals. Treatment
staff who might otherwise be wary of an attorney's questions will be
reassured by the presence of a colleague who speaks their language and
can interpret their point of view. [19] By the same
token, attorneys can be expected to give more credence to the opinions
of an independent clinician who is not subject to the conflicts of interest
that can develop in a treatment situation, such as those arising from
countertransference.
The collaborative approach that we are proposing can also forge an alliance
favorable to interdisciplinary education. Learning to define more clearly
the limits of their knowledge, both psychiatrists and attorneys can at
the same time extend those limits. The attorney stands to learn about
the vicissitudes of mental illness as they affect competency; the physician
stands to learn about the legal ramifications of diagnostic and treatment
concerns. Moreover, the attorney and the clinician each can benefit from
exposure to the specific decision-making skills of the other. [20]
The result will be a joining of two already rich traditions for the benefit
of those served by both.
Most important, a collaboration between attorney and physician can help
re-awaken the traditionally clinical concept of "primum non nocere" — "first
of all, do no harm." Much has been written about the need to balance
the risks and benefits of medical interventions in order to minimize
inadvertent harm from treatment (iatrogenesis). However, the intrinsic
risks of legal interventions, which we have elsewhere termed "critogenesis" (from
the Athenian "crites" or "judge," [21]
remain largely unexamined. The approach that we have outlined here can
help protect patients against both kinds of harms by reminding the two
professions of the double-edged quality of interventionism.
The authors are from the Program in Psychiatry and the Law, Massachusetts
Mental Health Center, 74 Fen-wood Road, Boston, MA 02115.
References
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expressed here should also be understood to apply to incompetent mentally
retarded persons.
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simple procedure have been detailed elsewhere. (6-9) Alternatively, a
judge may function essentially as the guardian in the case (5, 10) and
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