Thursday, December 12, 2019
One of the most frequent search phrases that brings internet users to our Elder Law Prof Blog is the phrase "competency vs. capacity." The search leads readers to a post from 2006 that summarizes an article written by two experienced psychiatrists, Phillip J. Resnick and Renee Sorrentino, originally published in December 2005 in Psychiatric Times. The article -- and often our blog post -- is frequently quoted or cited for the following passage:
This [clinical] 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 presume 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. . . . 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 about 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?"
An additional challenge, however, is that in the years since that particular article was written, there has been a strong movement in law to dispense almost entirely with the "incompetent" label for legal purposes, especially when we are talking about the individual's ability to make informed decisions, whether for health care or other matters in life. The incompetent label is viewed as unnecessarily and inappropriately stigmatizing. The legal trend is to focus on capacity evaluations. This trend also rejects global incompetency labels, and is often tied to an evaluation of function for specific tasks. Perhaps the two professions are moving in the same direction when concerns are identified about cognition, focusing on an evaluation of the individual's "capacity for what?"
Earlier this week, I was part of a fascinating discussion with a panel that included Dr. Samuel Hammerman, who wears many professional hats including that of a practicing pulmonary and critical care physician; Dr. Charles J. Duffy, a professor of neurology with deep professional interest in dementia; and Rabbi Ron Muroff, who set exactly the right tone for compassionate discussion. Okay -- we all admitted our introduction sounded like the start of a joke about walking into a bar.....
We took up this topic of "capacity" or "competence" in response to two cases drawn from real life, where patients with serious physical health concerns also have compromised cognition and are rejecting admission or treatment at a hospital. Our audience, members of the Cardozo Society (lawyers) and the Maimonides Society (health care professionals) of the Jewish Federation of Greater Harrisburg, were very engaged and of enormous help in the discussion. I walked out of the room energized and ready to get back to a long-planned article updating this topic (as soon as I find that elusive commodity, time!).