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.


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.

  1. 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].
  2. 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.
  3. 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].
  4. 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."
  5. 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.
  6. 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].
  7. 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.
  8. 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.
  9. 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.


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.


  1. Appelbaum PS, Roth LH: Clinical issues in the assessment of competency. Am J Psychiatry 138:1462-1467, 1981
  2. Gutheil TG, Appelbaum PS: Clinical Handbook of Psychiatry and the Law. New York, McGraw-Hill, 1982
  3. Soskis DA: Schizophrenic and medical inpatients as informed drug consumers. Arch Gen Psychiatry 35:645-647, 1978
  4. Appelbaum PS, Gutheil TG: Clinical aspects of treatment refusal. Compr Psychiatry 23:560-566, 1982
  5. Gutheil TG: Paranoia and progress notes: a guide to forensically informed psychiatric record keeping. Hosp Community Psychiatry 31:479-482, 1980
  6. Gutheil TG, Appelbaum PS: Substituted judgment: best interests in disguise? Hastings Cent Rep 13(3):8-1 1, 1983
  7. 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
  8. 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