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Competency and Competency and Capacity to Capacity to ChooseChoose
Which Term?Which Term?
• Competency: Best restricted to legal use when a formal procedure has been conducted
• Capacity to choose: best used to describe the clinical assessment of patients by health professionals
• “Capacity to choose” cumbersome to say so often use “competency” for short
Errors to AvoidErrors to Avoid
• Allow persons to die at their request when actual capacity to choose is deficient
• Keep patients alive contrary to their request when they possess full capacity
Ingredients of capacityIngredients of capacity
• Communicate participation
• Understand relevant data and how they apply
• Conceive values (what is good for me)
• Deliberate: apply values to one’s understanding of options and their pros and cons
Ideal Notion of CapacityIdeal Notion of Capacity
• “Objective”
• Based only on how a person’s mind works
• Is not based at all on what the person actually chooses (e.g., to accept or refuse life-prolonging treatment)
• This assures that we do not sneak paternalism into the back door (anyone I disagree with lacks capacity)
Ideal Notion of CapacityIdeal Notion of Capacity
• Buchanan and Brock: “Fixed minimum threshold conception” of competence
• Give 5 reasons for rejecting and using sliding scale instead
Ideal YardstickIdeal Yardstick
• Objective
• Easy to use
• Gives clear answer
• All staff can agree on what outcome means
• e.g., Mini-Mental-Status exam, Glasgow Coma Scale
Ideal Yardstick?Ideal Yardstick?
• What are we to make of the fact that no such yardstick has been formulated-- despite the central importance of respect for autonomy in our present system of ethics and law?
Possible ExplanationsPossible Explanations
• Capacity to choose is a very slippery concept– decision specific– varies from day to day, even hourly
• It is “decided not discovered”-- there is no really objective standard
Buchanan and BrockBuchanan and Brock
• Sliding scale concept
• The more we see decision as benefiting the patient, the lower the threshold needed to prove that patient has the capacity to choose
• Attempts to provide better balance between respect for patient autonomy and duty to avoid harm and provide benefit
Buchanan and BrockBuchanan and Brock
• Controversial claim: I may be considered competent to say “yes” to a given medical treatment and yet be incompetent to say “no” to the same treatment
• Seems to say: you have right of informed consent but no right of informed refusal
Buchanan and BrockBuchanan and Brock
• Applying to Dax case
• Calculate expected risk-benefit balance of allowing to die vs. continued graft/tank
• If substantially worse require maximal level of competence
• Assess Dax to see if he meets that maximal level
Buchanan and BrockBuchanan and Brock
• Two ways to practice “hidden” paternalism:
• Use one’s own values and not Dax’s to decide what is “harm” and “benefit”
• Attach undue weight to any flaws or inconsistencies in Dax’s decision-making process
Buchanan and BrockBuchanan and Brock
• Which seems more accurate?
• “We require a higher level of competence when a person seems to be making a ‘mistaken’ decision”
• “We need to spend more time and energy assessing competence when a person seems to be making a ‘mistaken’ decision”
Buchanan and BrockBuchanan and Brock
• Which formulation is better (more respectful of the patient)?
• “You lack competence so I have no duty to adhere to your choice”
• “You seem to be making a mistaken decision and so I have an increased duty to try to persuade you to reconsider”
Gawande’s “Mr. Howe” caseGawande’s “Mr. Howe” case
• “Mr. Howe really lacked the capacity to make an appropriate decision, so we had no choice but to intubate”
• “Mr Howe had reasonable capacity to choose, but I really thought it was not in his best interests to forgo the respirator and so I elected to intubate against his wishes”
• Which is more honest formulation?