BOOK REVIEW

Becky Cox White. Competence to Consent. Washington: Georgetown Uni-versity Press, 1994. ISBN 0-87840-560-7

: : : No universally (or even widely) accepted definition of competence exists. Agreementis widespread that competence ought to be assessed in terms of capacities (abilities).

Competence to Consent, p. xii

Competence assessments involve deciding whether or not a person canbe allowed to make an important decision for themselves. If, as Becky CoxWhite says, there exists no widely or universally held definition of compe-tence, then for some people whether or not they make important decisionsfor themselves is dependent upon geographical fortune. White’s project isto formulate clearly what is involved in our conception of competence, andso her book is an important one.

I shall begin by exploring some of the major distinctions that Whitedraws between competing competence theories. White’s theory is taskoriented, degree dependent and consequence independent. She claims thatcompetence is best expressed in terms of the possession of a range of abil-ities. Each ability is necessary for competence. White’s final formulationincludes nine capacities that are necessary and sufficient for competence.I will not explain each of these (as I found her discussion of most of themunproblematic), but will restrict my comments to points at which I thinkshe errs.

Chapter one focuses upon cases in which competence assessments arecrucial. Some of the remarks that White makes about these cases I found atfirst a little troubling. A woman, Mrs W, arrived at a hospital the morningafter her husband had been admitted to the Intensive Care Unit with massivehead trauma following an automobile accident. He was not expected to live.Mrs W, who was 38 weeks pregnant, then went into labour prematurely. Shewas discovered to have a complete placenta previa. Without a Caesareansection the woman had a 50 percent chance of dying, and the baby a99 percent chance of dying. Mrs W refused the surgery, and when askedto explain her decision replied “No!” White suggests, correctly, that the

Theoretical Medicine and Bioethics 19: 161–166, 1998.c 1998 Kluwer Academic Publishers. Printed in the Netherlands.

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doctor should not act upon this woman’s refusal. She says that doubtsshould be raised about Mrs W’s competency.

There are obvious factors in this case that suggest this woman’s decisionmaking ability is not what it normally would be. My initial discomfort withWhite’s implication that we should consider Mrs W incompetent residespartly in the permanence suggested by predicates such as “competence.”After all, it wouldn’t be surprising if, after some time and support, MrsW quickly came to realize the importance of having a Caesarean sectionfor herself and for her child. This is not a problem for White’s theoryof competence, because at the time of her refusal Mrs W was overcomewith grief and not competent. But it may have been prudent for White toconsider the temporary nature of Mrs W’s incompetence. She does suggestthat what the physician should do in this case is to decide that this womanwas not in a good state of mind and try a different approach at some timein the near future (the decision is a matter of some urgency in this case).

Chapter Three includes a preliminary definition of the capacitiesrequired for competence. White says, “Persons are competent for the taskof giving a free and informed consent if they are generally informableand cognitively capable of making decisions.” Thus White’s definitionof competence is a task-oriented one. Being competent to consent meanspossessing the skills necessary and sufficient for consenting. A person iscompetent to perform a task when they know what is involved in complet-ing a task and can perform the actions involved in the task. The tasksinvolved in consenting are related to being informable and cognitivelycapable of making a decision.

White argues for a notion of specific competence, as opposed to generalcompetence. A person is specifically competent when they possess onlythose capacities necessary for the task at hand, whereas a general notion ofcompetence would mean that a person was generally competent to managehis life’s affairs. One of White’s stronger arguments for a specific notion ofcompetence involves the fact that a general notion of competence wouldcount as incompetent some patients who are in fact competent to consent.The person who cannot maintain a job, manage his or her finances andlook after his or her house will be deemed generally incompetent, as theycannot do most of the things that we expect people to. As a result, on ageneral notion of competence, this person will be deemed incompetent tomake decisions about his or her health care, even though its quite possiblehe or she is competent for this task.

On this point White’s position is in agreement with Faden andBeauchamp, who also argue that competence must be task specific. How-ever, they would part company with her advocacy of a notion of compe-

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tence by degrees. Faden and Beauchamp suggest in A History and Theoryof Informed Consent that “: : : the continuum of competence ranges withoutdiscernible breaks from full competence through various levels of partialcompetence to full incompetence, practical and policy reasons demand thatcut-offs must be stationed on this continuum. A threshold of competencemust be drawn so that it can be established that patient at or below thethreshold point lack a sufficient measure of abilities, and so must be treatedas incompetent.”1

Beauchamp and Faden think that people can be better or worse atperforming the same task. Therefore people can be more or less competent.There will always be a degree of arbitrariness with boundaries of this sort.(Are all twenty year olds mature enough to drink alcohol?). Yet suchboundaries are very important and need to be drawn. When thinking aboutwhether or not a person is competent, one has to decide one way or theother, and so the notion of a threshold is necessary.

Cox says that “on a degree theory of competence a distinction can bemade between persons who understand more and those who understandless” (p. 64). It is hard to see why on a threshold notion we cannot makethe same distinctions. A threshold notion of competence states that at acertain level on a continuum we draw a line, above which people arecompetent, and below which they are not. The drawing of such a line doesnot imply that people are no longer on a continuum. On a threshold notionof competence, it is still possible to draw distinctions between those whoare more or less competent.

Fortunately, White has a stronger argument. If decision-making author-ity is less firmly established (as a result of decreased competence), othermorally relevant appeals may participate in the decision-making process.Her claim is that, on a threshold notion of competence, once we decide thata person falls on the competent side of a threshold, it is difficult to disagreewith a decision that appears to be poorly made. If a person only just fallsshort of the competence threshold, then he or she is still not able to giveinformed consent. On a degree notion of competence, persons just belowthe threshold could, with the help of family and extra effort by staff, stillgive an informed consent. In a nutshell, a threshold notion of competencewould obstruct those of marginal competence being offered a helping handwith their consent.

White also introduces the notion of consequence dependent and conse-quence independent competence. The idea is that for consequence-depend-ent notions of competence, our definition of competence will changedepending upon the seriousness of the decision. A decision with seriousconsequences should prima facie require us to be more careful in our

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competence assessments. Likewise, if a patient has to make a decision thatdoes not have a serious outcome, we should not trouble too much with thedegree of competence. I am thinking here of the psychiatric patient whowishes to take his pain medication at 9:30 rather than 9 am. This personmay not be competent to consent, yet allowing him to make decisions suchas this may help decrease his sense of alienation.

White convincingly explains why health care professional (HCPs) mustnot allow consequences to enter into their definition of competence. Sheargues, “As the bias of HCPs is usually for rather than against treatment,we risk adopting an ascending scale of criteria that will effectively precludepatient self-determination for any serious or major therapeutic interven-tion” (p. 109).

The major point behind competency and informed consent is to ensurethat people receive health care they consider to be in their best interest, andthat they do not receive health care they do not consider to be in their bestinterest. A consequence dependent theory effectively hands the decisionmaking power for important decisions back to the health care professional.The major reason why we have informed consent is because people oughtto be able to make important decisions concerning their own well-being.

The intuition that psychiatric patients should be able to make theirown decisions about aspects of their health care that do not have seriousconsequences derives from a more general intuition, which is that althougha person may be incompetent, he or she may still have insight into whatis happening and into the fact that decisions are being made on his or herbehalf. Thus there are important considerations that need to be made forthe incompetent patient. This does not mean that when we allow thosedeemed incompetent to make decisions that have no serious consequenceswe are changing our definition of competence.

The feature of White’s theory of competence that impressed me mostwas her discussion of cognitive versus affective competence. Emphasisupon the importance of the affective qualities of our mental life is some-thing that has re-emerged only recently in the philosophy of mind. In hisbook Descartes’ Error, Damasio argues for the importance of emotionin organising our lives (our life plans and our mental lives). He showshow people with neurological damage such that their cognitive abilitiesare unimpaired but whose affective capabilities have been damaged cannotorganise their practical lives. White summarizes the importance of affect indecision making by saying, “: : : human information systems require morethan the ability to calculate. They also depend on the capacity to recogniseand take note of important data, some of which are feelings. Emotionalresponses signal that situations or events are important” (p. 118). Her point

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is that without emotional responses to events it is hard to perceive the valuein these events. In Hume’s words, “reason is the slave of the passions.”

White identifies nine capacities (or skills) that make up competence. Thenine capacities are organized under four broad categories. The four cate-gories are informability, cognitive and affective capability, ability to chooseand ability to recount one’s decision making process. The nine capacitiesare: receive information; recognize relevant information as information;remember information; relate situations to oneself; reason about alterna-tives; rank alternatives; select an option; resign oneself to the choice; andexplain one’s decision. Chapter five is a detailed explanation of each ofthese competency criteria. As most of them are unproblematic, I will notdiscuss all of them.

Discussions about competence involve deciding what features abouta person determine whether we are going to let them make their owndecisions about what is going to happen to them. When a person is judgedincompetent this can be a very distressing event. It seems very importantthat people who are not competent, but are sufficiently aware of theirstate so as to realise what is happening to them, are somehow involvedin the decision making process. In her discussion of informability, Whiteintroduces three notions that help to alleviate some of this worry. Theability of some people to recognise the importance of information is clearly“adequate” or “inadequate.” White says that the ability of some people torecognize the import of information is “marginal.” By this she means thatthis person will need extra on-going assistance in recognizing the salienceof facts about his or her situation. Someone whose ability is inadequateseems to be a person who cannot take on board what is important abouthis or her predicament.

Memory is obviously a feature of being informable. Because mostdecisions involve reflection over a period of time, if it is not the case thatyou can retain information about your illness then you will not be able toreach a well-reasoned decision. White uses an unorthodox classificationof the different types of memory. “Memory is classified with reference totime: short-term memory, or memory for immediate (within the past hour)events; recent memory, or memory for events of the last few weeks ormonths; and long term memory, or memory for anything that occurred priorto the last few months” (p. 165). This classification is unorthodox becausepsychologists do not simply classify memory according to time. Thereexists important cognitive differences (relevant to competence) betweenkinds of memory. Short term memory is sometimes referred to as workingmemory. Loosely speaking, it is the type of memory we exhibit when weconsciously keep something in mind – for example, a telephone number.

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So while White is right that short term memory involves times usuallyless than an hour, this description omits important features. Without doubtwe do have recent memories and longer term memories; however, strictlyspeaking, these memories are both long term memories – that is, theyboth involve the consolidation of short term memory traces to long termmemory.

White says that adequately competent patients are able to retrieve infor-mation from all three memory banks. As short term memory really involvesholding things in one’s mind, the idea of retrieving something from one’sshort term memory bank is rather odd. White says the marginally com-petent person may require repetition of data to make up for deficits inshort-term or recent memory, or reminders of how they have felt in thepast. But since short term memory is really more like working memory,what we are doing when we repeat data in this way may be better thoughtof as aiding a person whose cognition is marginal. What is really difficultfor such people is not so much remembering, but being able to reasonabout information they have just been given. Someone who is competentto recall recent events (over an hour) are more likely to have difficultyin consolidating long term memory traces, or accessing the appropriatecues to aid in recalling the appropriate fact. Those who have difficulty inrecalling event from a more distant past may have problems in accessingthe appropriate memory trace, or the memories themselves may have dete-riorated. White says that the incapacitated patient will have only “random,unreliable memory access (or no access at all)” (p. 167).

Apart from the concerns which I have raised in this review I wouldhave no hesitation in recommending Competence to Consent to all thosewho have an interest in informed consent. It is a book of depth and caresufficient for it to be considered a theoretical contribution of the highestquality in contemporary bioethics literature.

REFERENCE

1. Beauchamp, T. and Faden, R. A History and Theory of Informed Consent. New York:Oxford University Press, 1986, pp. 289–290.

Bioethics Research Centre JOHN McMILLAN

University of OtagoDunedin, New Zealand