The average patient in today's healthcare setting is required to make numerous decisions regarding treatment. As the sophistication of health-care technology increases, so does the complexity of the decisions patients and their families make. In order to decide prudently, the patient must be able to understand information presented to him; in order to understand, the patient must be competent. The nurse is often involved, formally and informally, in the determination of competency in the elderly. Yet, how is competency legally and ethically defined?
A broad definition of competency will be presented with a discussion of the role of competency in giving valid consent. Degrees of competency will be examined as they apply to clinical practice and decision making. General criteria for determining competency will be presented. Finally, a discussion of philosophical considerations will address the moral issues connected with the determination of competency.
It is an accepted fact that the population of elderly is increasing in the United States. As stated in The WaU Street Journal (My 10, 1984), "What is dramatically new and worrisome about the fact is what one expert calls phase two of the gerontological explosion - the aging of the aged. As society learns to better stave off heart disease , strokes , cancer, and other killers, more and more Americans, and an increasing percentage of the total population, are living not just past 65 but on into their 80s, 90s, and beyond. Men and women 85 and over constitute the fastest-growing age group in the United States."
The number of elderly patients over 75 years of age in an average hospital can range from 17% to 32%.I(P29) These elderly patients are extremely vulnerable to the experience of being hospitalized. Though they may benefit from the treatment the hospital has to offer, "the surrender of independence and loss of contact with significant others may be overwhelming and result in devastating consequences for both client and family. "l(P3l)
Determination of competency in the elderly is, therefore, a common occurrence in health-care practice. The elderly are more likely to have their competency called into question than their younger cohorts. How do healthcare professionals determine competency? Before we can determine if someone is competent, we must define competency.
Competency refers to the quality of a decision. It is not an absolute term. In reality, one is not necessarily completely competent or completely incompetent. It is a relative term and refers to a specific decision at a specific point in time. However, case law and statutes have generally treated a patient's capacity to make health-care decisions in a rather black-and-white manner. A patient is presumed "competent," and, therefore, capable of making a decision unless declared "incompetent" by a court of appropriate jurisdiction.
A fully competent person would fulfill the following criteria in making a decision regarding health care: J) the person has adequate understanding to appreciate information, 2) the person understands the benefits and the risks of the treatment suggested, and 3) the person appreciates that said information applies to them.2
The Uniform Probate Code, which is the basis for most state statutes, does not directly define competence but addresses the concept in its definition of "incapacitated person." The definition of incapacitated person "means any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority), to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person."3 State statutes may contain the definition from the Uniform Probate Code or a variation. Therefore, the nurse should consult the appropriate state statute.
The law is not necessarily helpful in determining competency. The definitions are broad. Advanced age is mentioned in the definition, which places the elderly in a particularly vulnerable position of being declared incompetent merely due to their age.
Determination of competency is closely tied, conceptually and in practice, to the doctrine of informed consent. In order for consent to be valid, three elements must be present.4 First of all, the consent must be voluntary. There should be no obvious external control or coercion. It is debatable if any patient gives consent voluntarily as illness, pain, and fear must exert some controlling effect on decision making. In practice, this element of consent is interpreted as the freedom from undue pressure by health-care professionals or family members to make a certain decision.
However, "as adults grow older, younger people are inclined to treat them as not fully capable of making their own decisions and managing affairs as they once did. Thus, it is not uncommon for the adult children of the aged to impose their own will on their parents in such things as where, how, and with whom their parents will live; what they will continue to own or divest themselves of; and what kind of medical treatment they will have. The rationale behind this intervention is that, left to their own devices, the elderly would make imprudent decisions and thus harm themselves. nsw2s^2sst
Secondly, the consent must be informed. The patient must have adequate information to make an intelligent decision. How much is enough information is left to interpretation. The procedure or treatment suggested by the health-care professional must be explained to the patient in simple language so the patient can understand.
The health-care professional is also obligated to ensure that the patient has understood the information presented. Though it is impossible to ever fully determine another individual's level of comprehension, the nurse can ask the patient to repeat the information and clarify any misunderstanding.
Finally, the patient must be competent to give valid consent. This element of valid consent brings us full circle. A patient's competency may not ever be questioned until the patient disagrees with the health-care professional's suggestion for treatment.
Not all patients are capable of understanding all of the information presented to them. Thus, patients may be divided into three groups with respect to their competence to give consent. 2(pp279-280) T^cßrst gfOUp ÌS COHiprised of those patients who are completely incompetent and, therefore, incapable of giving valid consent. Patients in this group are those who are comatose or completely unaware of their surroundings.
The second group is comprised of those patients who are able to give simple consent or refusal for treatment or procedures. They understand, at least partially, that they are giving consent but are unable to appreciate the consequences of their decisions. "Unfortunately, scant legal analysis exists, either in case law, statutes, or legal treatises, regarding the appropriate legal weight for decision-making capacity of those individuals, particularly the elderly, who cannot properly be identified with either of these labels (incompetent or fully competent)."6
The third group is comprised of those individuals who are fully competent and can make their own choices regarding the desirability of treatment. These individuals can give valid consent and valid refusal.
Most determinations of competency are not made in a court of law. Healthcare professionals and administrators determine the competency of patients on a daily basis. The nurse may be asked to offer opinions on the capacity of an elderly patient to make decisions. The validity of the health-care professional's findings regarding the competency of a patient is questionable. However, if the following criteria are used to determine competency, the findings carry more credibility.
First, can the patient make and express choices concerning life? Two examples from case law point out this ability to make and express choices concerning life. In the Matter of Robert Quackenbush, an alleged incompetent, features Robert Quackenbush, a 72year-old who had to choose between a bilateral amputation of his legs or certain death from gangrene.7 Since Mr Quackenbush had refused treatment, the hospital had brought the matter to court to declare Mr Quackenbush incompetent so treatment could legally progress. Judge A. J. Muir met with Mr Quackenbush to determine his competency. Judge Muir noted that Mr Quackenbush spoke somewhat philosophically about his circumstances and desires. Mr Quackenbush hoped for a miracle but realized that there was no great likelihood of its occurrence.7
In Lane vs. Candara, Rosaría Candura, a 78-year-old woman, again had to choose between amputation of her right foot and lower leg or death from gangrene.8 After some vacillation, Mrs Candura decided not to have the surgery. Mrs Candura 's daughter filed a petition with the Probate Court of Middlesex County seeking appointment of herself as temporary guardian of her mother so the surgery could be performed.
Mrs Candura discussed her reasons for not wanting to go ahead with the surgery. She had been unhappy since her husband's death. She did not wish to be a burden to her children. She did not believe that the operation would cure her (which, in fact, it would not as Mrs Candura was a severe diabetic with peripheral neuropathy). Also, she did not want to finish her life as an invalid in a nursing home.8 All of these reasons demonstrated Mrs Candura's ability to make and express choices about life.
The second criterion for determining competency is to decide if the outcome of the choice(s) the patient is making is reasonable. In both of the cases cited, the elderly clients had determined that the burdens of treatment and subsequent burdens of living with an amputation outweighed their desire to live. The invasiveness of the surgical procedures was greater than the benefits they would derive. In both cases, the court found the outcome of their choices to be reasonable.
The third criteria is to determine if the choices are based on rational reasons. A person may have adequate reasons for irrational choices, which is the most subjective of the criteria. It may seem that choosing death over life is always irrational. This is very true in the health-care system, as health-care providers are in the business of sustaining life.
However, when there is a disagreement on this criteria, the patient's competency is almost always called into question. In Mrs Candura's case, she had originally given consent for the surgery. Her competence was not called into question until she changed her original decision and withdrew her consent for the amputation.8
The ability to make a rational choice has to be separated from making a "medically rational choice" as they are not the same. What is considered medically rational treatment is not always the treatment of choice of the patient. There may be quite a divergence of opinions regarding the rationality of treatment choices in the case of the elderly. The elderly are not a homogeneous group.
In fact, the elderly are more heterogeneous than their younger counterparts. They have a wealth of experience which influences their decisions regarding the desirability of treatment. A relatively young health-care professional may have great difficulty in respecting an elderly patient's decision that does not comply with medical treatment standards.
The fourth criterion for determining competency is to confirm the patient's ability to understand the implications and consequences of the choices that are made. If either of the patients in the cases presented had refused the amputation(s) and declared a clear desire to live, this would indicate that they did not adequately understand the consequences of their choices. The healthcare provider has an obligation to make sure that the patient has received all the information necessary to make an informed decision. There is a fine line between fulfilling this obligation to inform and coercing the client.
The analysis of competency urges emphasis on the capacity of the client to decide. The focus should be on the process of decision-making rather than the final choice. The ethical questions focus on procedural and substantive issues. Procedural ethical questions include: Who decides if a choice is rational? The law is consistent in its protection of the rights of the individual to determine his or her own fate unless there is a clear indication that the action is unnecessarily harmful or pointlessly jeopardizes the individual.
Competency cases dealing with health-care decisions always include the testimony of medical experts. Are medical experts qualified to determine the rationality of the client's decisions? It is interesting to note that one expert witness usually finds the client incompetent and another finds the same client competent.
If the elderly cannot decide, who should decide for them? Deciding in the "best- interests" of another is very difficult if not impossible. "What makes this latter kind of intervention (deciding for another) so serious morally is that it strikes at psychic privacy, the privacy of the inner sphere, of one's thoughts, ideals, ambitions, and feelings. "5<P254>
Substantive ethical questions concerning the determination of competency include: Why is it important to determine competency? What ethical principle underlies an analysis of competency? The ethical principle is respect for persons which encompasses self-determination and autonomy. The nurse is in a position to either recognize the elderly patient as an autonomous individual, strengthen his will for self. determination, or ignore the value of autonomy, encouraging helplessness and dependency.
By taking the time to thoughtfully and systematically determine an elderly patient's degree of competency, the nurse is reaffirming the patient's right to respect and freedom of choice. The patient can then participate, to the extent of his competency, in decisionmaking regarding his care, and by extension, his life.
- 1. Gotightly CK, Bossenmaier MM, McChesney J1 et al: Planning to meet the needs of the hospitalized elderly. J Nurs Mm 1984; 14(5).
- 2. Culver CM: The clinical determination of competence, in Kapp M, Pies HE, Doudera AE (eds): Legal and Ethical Aspects cf Health Care for the Elderly. Ann Arbor, Mich, Health Administration Press, 1985, p 279.
- 3. Uniform Probate Code, Fifth Edition (1977), Section 5-101, p 255.
- 4. Kapp MB, Bigot A: Geriatrics and ihe Law. New York, Springer Publishing Co, 1985, pp 23-31.
- 5. Barry V: Moral Aspects of Health Care. Belmont, Calif, Wadsworth Publishing Co, 1982. pp 254-255.
- 6. Dubler NN: Some ìegal and moral issues surrounding informed consent for treatment and research involving the cognilively impaired elderly, in Kapp M, Pies HE, Doudera AE (eds): Legal and Ethical Aspects of Heal lh Care for the Elderly. Ann Arbor, Mich, Health Administration Press, 1985, p 255.
- 7. In the Matter of Robert Quackenbush. an alleged incompetent 156 NJSuper 282, 383 A.2d 785 (1978).
- 8. Lane vs. Candara, 376NE2d 1232 (Mass App 1978).