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.


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.


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.


*Although the issue in Massachusetts case law has focused on mentally ill, institutionalized patients, the arguments expressed here should also be understood to apply to incompetent mentally retarded persons.
**The complexities of this ostensibly simple procedure have been detailed elsewhere. (6-9) Alternatively, a judge may function essentially as the guardian in the case (5, 10) and may ratify or order a treatment plan for the patient.

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  5. In the Matter of Guardianship of Richard Roe, III, 421 N.E.2d 40 (Mass. 1981).
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