Thursday, January 12, 2006
Forensic Issues in Consultation-Liaison Psychiatry
By Phillip J. Resnick, M.D., and Renee Sorrentino, M.D.
Psychiatric Times December 2005 Vol. XXIII Issue 14
This article addresses the difference between competence (as a legal concept) and capacity (as in capacity to give informed consent for medical treatment). It begins:
Consultation-liaison psychiatrists frequently encounter clinical situations that have legal implications. The most common legal issue that arises in consultation psychiatry is the question of competence. Practitioners often turn to the psychiatric consultant for an opinion on whether a patient is competent when a patient is unable to consent to treatment or refuses a medically indicated procedure. The consultation request is often framed as a question (e.g., "Is Mr. Smith competent to refuse surgery?").
This consultation request reflects a common misconception regarding the issue of competence. Competence is a legal state, not a medical one. Competence refers to the degree of mental soundness necessary to make decisions about a specific issue or to carry out a specific act. All adults are presumed to be competent unless adjudicated otherwise by a court. Incompetence is defined by one's functional deficits (e.g., due to mental illness, mental retardation or other mental condition), which are judged to be sufficiently great that the person cannot meet the demands of a specific decision-making situation, weighed in light of its potential consequences (Grisso et al., 1995). Only a court can make a determination of incompetence.
In contrast, psychiatric consultants can and should opine about a patient's capacity to make an informed decision or judgment. Capacity is defined as an individual's ability to make an informed decision. Any licensed physician may make a determination of capacity. Forensic psychiatrists, however, are especially suited to assess a person's mental status and its potential for interfering with specific areas of functioning. An individual who lacks capacity to make an informed decision or give consent may need to be referred for a competency hearing or need to have a guardian appointed. The psychiatric consultation results in an opinion regarding whether such actions are indicated.
Moreover, competence is issue specific. Some physicians who misconstrue competence to be a global, black or white issue will ask psychiatric consultants for a broad consultation on whether the patient is competent or not. The response of the psychiatric consultant should be, "Competent for what?" The capacity to make a competent, informed decision on the issue at hand needs to be investigated. Other aspects of the patient's mental status or diagnosis are not as relevant as their ability to comprehend and make voluntary, informed decisions regarding the immediate problem.